Collins v. Brier Hill Collieries

• Decision Date: 09 February 1929
• Citation: 13 S.W.2d 332
• Parties: COLLINS v. BRIER HILL COLLIERIES.
• Court: Tennessee Supreme Court

Page 332

13 S.W.2d 332

COLLINS v. BRIER HILL COLLIERIES.

Supreme Court of Tennessee.

February 9, 1929.

Appeal in Error from Circuit Court, Overton County; J. R. Mitchell, Judge.

Suit by Grace Collins against the Brier Hill Collieries. Judgment of dismissal, and plaintiff appeals in error. Affirmed.

Worth Bryant, of Cookeville, and G. C. Whittaker, of Monterey, for plaintiff in error.

J. T. Wheeler, of Jamestown, and C. J. Cullom, of Livingston, for defendant in error.

SWIGGART, J.

The circuit court dismissed plaintiff's suit for compensation for the death of her husband, and she has appealed in error.

Plaintiff's motion for a new trial was directed only at the sufficiency of the evidence to sustain the judgment denying the award. The evidence was not preserved by bill of exceptions, and plaintiff's claim must be tested by the written finding of facts made a part of the record by the learned trial judge.

The workmen's compensation statute (Acts 1919, c. 123, § 10) excludes from its application an injury or death "due to the employee's willful misconduct."

The judgment of the circuit court was grounded upon the finding of the trial judge that the deceased employee came to his death as the result of his willful disobedience to the orders and instructions of his foreman, and that his willful disobedience amounted to willful misconduct, preventing an award of compensation to his widow.

In Kingsport Foundry & Machine Works v. Sheffey, 156 Tenn. 150, 299 S. W. 787, this court held that the employee's violation of instructions with regard to his conduct within the sphere of his employment, amounting to a mere disregard of an order, neither willful nor deliberate, does not amount to the "willful misconduct" contemplated by section 10 of the compensation statute. The facts to which the holding of the court was applied, in the case cited, were that the employee used an instrument or machine contrary to instructions, and was injured, but that the instructions not to use the machine were not because of any apprehension that it would be dangerous to do so.

In Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S. W. 543, it was held that, "when the workman is within the scope of his employment, disobedience does not become `willful misconduct' if a mere disregard of an order; that it must be willful, deliberate, `not merely a thoughtless act on the spur of the moment.'"

We hold the converse of this proposition to be true; that willful and deliberate disobedience of an order of the employer, intended and designed to safeguard and protect the employee from danger, does amount to "willful misconduct" on the part of the employee, which will prevent an award of compensation for injury or death resulting from such willful and deliberate disobedience, under the provisions of section 10 of the compensation statute. N., C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S. W. 919; Nashville, C. & St. L. Ry. v. Wright, 147 Tenn. 619, 250 S. W. 903; Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S. W. 772.

A. C. Collins, husband of the plaintiff, was an experienced miner, and was killed while at work in a coal mine operated by the defendant. At the time of his death Collins was loading coal in a mine car, when a piece of slate or rock, weighing about 1,500 pounds, "fell from the roof or top over him" and crushed him. This large rock had been exposed or loosened by a charge of dynamite on the night before. About thirty minutes before the accident, the mine foreman had directed Collins' attention to this rock; had shown him a seam or opening, which was visible, in the rock; and had instructed Collins: "that it was a bad rock, and don't get under it, and I told Collins to take it down, and not to try to timber it."

The trial judge refers in his written finding of facts to the...