Cooper v. Queen

• Decision Date: 30 March 1979
• Parties: George W. COOPER, III, Administrator of the Estate of Barry Wesley Cooper, Plaintiff-Appellant, v. W. R. QUEEN, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 830

586 S.W.2d 830

George W. COOPER, III, Administrator of the Estate of Barry

Wesley Cooper, Plaintiff-Appellant, v. W. R. QUEEN, Defendant-Appellee.

Court of Appeals of Tennessee, Middle Section.

March 30, 1979.

Rehearing Denied June 29, 1979.

Certiorari Denied by Supreme Court Aug. 27, 1979.

Jordan Stokes, III, Nashville, for plaintiff-appellant.

Don R. Binkley, Gracey, Maddin, Cowan & Bird, Nashville, for defendant-appellee.

OPINION

LEWIS, Judge.

This appeal arises from the dismissal of plaintiff's suit against W. R. Queen. Defendant moved for a dismissal of the complaint against him on the ground that under the provisions of T.C.A. § 50-908, the rights and remedies granted by the Tennessee Workmen's Compensation Law on account of personal injuries or death by accident are exclusive of all other remedies, including suits at common law.

In his Complaint, plaintiff alleges:

1. Twenty-one year old Barry Wesley Cooper died while employed and on the job for Queen's Tree Surgery, Inc.;

2. W. R. Queen is the chief stockholder and President of Queen's Tree Surgery, Inc.;

3. Queen's Tree Surgery, Inc. had a contract with Nashville Electric Service to trim trees and brush from around electric poles and lines;

4. Trimming was done by a workman in a fiberglass bucket controlled by steel cables running from the bucket down to the truck;

5. The steel cables are manufactured with fiberglass insulators inserted in the cable to prevent the flow of electricity to the truck body should there be any contact with an electric wire;

6. Queen's Tree Surgery, Inc. had removed the fiberglass insulators resulting in an unimpeded path through which electricity could pass down to the truck body;

7. The assembly came in contact with a live wire and at least 4000 volts passed down the cable to the truck body and plaintiff's decedent was electrocuted when he came in contact with the truck; and,

8. W. R. Queen as chief officer and major stockholder of Queen's Tree Surgery, Inc. was grossly, even criminally, negligent in furnishing that piece of equipment to the work crew.

Defendant's motion for dismissal of the suit against him was granted.

The sole assignment of error alleges the Trial Court erred in holding W. R. Queen could not be sued at common law for his gross or criminal negligence and that plaintiff's only available remedy was the Tennessee Workmen's Compensation Law.

The sole issue then is whether W. R. Queen is shielded from common law liability by T.C.A. § 50-908.

Stated in its narrowest terms and in comport with plaintiff's general line of argument, the issue is whether gross or criminal negligence is of such a character that it should be equivalent to intentional tortuous conduct and thus fall outside the scope of T.C.A. § 50-908.

50-908. Right to compensation exclusive. The rights and remedies herein granted to an employee subject to the Workmen's Compensation Law on account of personal injury or death by accident, including a minor whether lawfully or unlawfully employed, shall exclude all other rights and remedies of such employee, his personal representative, dependents, or next of kin, at common law or otherwise, on account of such injury or death. (Acts 1919, ch. 123, § 8; Shan.Supp., § 3608a157; Code 1932, § 6859; Acts 1961, ch. 184, § 2.)

Plaintiff cites Williams v. Smith, 222 Tenn. 284, 435 S.W.2d 808 (1968), and Reed v. State, 172 Tenn. 73, 110 S.W.2d 308 (1937), in support of his proposition that gross or criminal negligence is equivalent to an intentional tort.

In Williams, plaintiff, an employee saleslady for the defendant company was fired by a fellow employee, the store manager, who subsequently allegedly intentionally committed an assault and battery upon her. Two issues were raised on appeal:

(1) whether or not the Workmen's Compensation Act bars a common law action where an employer corporation acting through its employee alter ego intentionally commits an assault and battery upon an employee so as to restrict the assaulted employee's remedy exclusively to the Workmen's Compensation Act, and

(2) whether or not the Workmen's Compensation Act provides immunity to an employee who commits an intentional and malicious assault and battery upon a co-employee.

Our Supreme Court held that the Workmen's Compensation Act barred a common law action against the employer for injuries sustained as a result of an intentional tort committed by a co-employee but did not bar an action against the co-employee.

As the co-employee in Williams had committed an intentional tort by definition, the case is not authority for the proposition that gross negligence should be considered the equivalent of intentional tortuous conduct for purposes of liability outside the Workmen's Compensation Act.

In Reed v. State, supra, appellant had been convicted of voluntary manslaughter arising from an automobile accident. The appellant's negligence was deemed by the jury to constitute criminal negligence. The issue on appeal was whether appellant's acts were such as to be regarded as malum in se. In finding that appellant's acts were malum in se, the Court used the following language, which plaintiff at bar asserts is determinative of the issue he raises:

It was an act on a par with firing a gun into a crowded street, or dropping a heavy object into such a street from a tall building. Id. at 76, 110 S.W.2d at 309.

Reed v. State concerned the issue of the nature of the negligence that would support a conviction for voluntary manslaughter. That gross or criminal negligence may or may not be sufficient to substantiate a conviction of voluntary manslaughter in criminal law is not authority for plaintiff's proposition here.

The policy decisions of the criminal are distinctive from those of the civil law. In particular, this is true in light of the Legislature's intent to alter remedies under the civil law, as evidenced by the enactment of the Workmen's Compensation Act.

In Brown Shoe Co. v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961), the term "accident" as used in the Workmen's Compensation Act was defined:

An accident is generally an unlooked for mishap, an untoward event, which is not expected or designed. Generally in most such cases this Court has repeatedly said that a compensable injury should be the result of something happening by accidental means though the act involving the accident was intentional. Accidental means ordinarily mean an effect which was not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing. It is produced by means which were neither designed nor calculated to cause it. It cannot be reasonably anticipated, it is unexpected, it is produced by unusual combinations of fortuitous circumstances and such an injury is an injury by accidental means. Id. at 114-15, 350 S.W.2d...