Dancy v. Abraham Bros. Packing

• Decision Date: 13 February 1937
• Citation: 102 S.W.2d 526
• Parties: DANCY v. ABRAHAM BROS. PACKING CO. et al.
• Court: Tennessee Supreme Court

Page 526

102 S.W.2d 526

DANCY v. ABRAHAM BROS. PACKING CO. et al.

Supreme Court of Tennessee.

February 13, 1937.

Error to Circuit Court, Shelby County; Harry Adams, Judge.

Proceeding under the Workmen's Compensation Law by Ernest Dancy, claimant, opposed by the Abraham Bros. Packing Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. Judgment denying an award, and claimant brings error.

Affirmed.

Joseph Norville, of Memphis, for plaintiff in error.

Albert G. Riley, of Memphis, for defendants in error.

CHAMBLISS, Justice.

In this case petitioner, who accidentally lost an eye while doing some work for the packing company, was denied an award by the trial court on the ground that he was, at the time, a casual employee only.

When injured, he was engaged in erecting a small auxiliary structure, described as a hydrant house, built around, to protect from freezing, the control valves of an automatic sprinkler system, which had previously been installed to protect the plant from fire. At the moment he was cutting a sheet of tin, a piece of which flew up and struck his eye.

His regular occupation was that of a carpenter, doing odd jobs, for first one and then another employer. He owned and worked with his own tools, and was paid 30 cents an hour. He was injured on the 24th of May. He testified that he had first applied to the packing company for work in March, when they had nothing for him, but he states that "later the chief engineer, Mr. George Crumby, sent for him and told him they had some work for him"; that he then went to work and worked from March 22d to April 4th; that at this time he was building, or enlarging, a house used for curing hides, which was a part of the business of the packing company; that at this time he also did some work on a salt bin and a coal bin, and made some minor repairs about the office; that between April 4th and May 13th he worked for another concern, doing carpenter work; that he came to work again for the Abraham Company May 13th, and between this date and May 24th, when injured, he did small jobs on a door and window in the office and on a door to a refrigerator room. From this, he was put on the work he was doing when injured.

Now these facts, as will be seen, relate mainly to the trade or occupation of the employee, which was that of carpenter. It may be conceded that they show that he was engaged "in the usual course" of his trade or occupation. But this is not determinative. Under our act, Code, § 6856(b), the test is whether or not the workman was employed when injured "in the usual course of trade, business, profession, or occupation of the employer."

Can the carpenter work of repairing these doors, windows, salt or coal bins, or inclosures of the control valves of the sprinkler system, be said to have been in the usual course of this employer's trade, business, or occupation? Was not this work rather of an occasional, now and then, exigency, unusual nature? The "occupation" of the packing company was not carpentering, constructing, or repairing.

It does not appear that this packing company maintained a force of carpenters for such work, or was prepared by or through its regular employees to perform it. The company did not maintain any mechanical department for the purpose of performing repair or construction work in connection with the operation of its plant. But, when and as the need arose, from time to time, acting through its chief engineer, a workman was called in for such purposes. The odd carpenter job or jobs the occasion appeared to demand being accomplished, the workman called in to perform this work would be released.

It is argued for petitioner that, while the occupation or business of the packing company was that of packers of meat and curing of hides, etc., it was essential to the performance of its business that it first construct and then maintain, in usable condition, its buildings and incidentally, here in point, its sprinkler system, and that this was, therefore, a part of its regular and usual business, in due and usual course.

The holding in the Canning Case, 283 Mass. 196, 186 N.E. 243, 244, is relied on to support this view. It appears to do so. However, the reported opinion is short, the greater part being devoted to a discussion of matters of local procedure not relevant here. A very brief statement of the facts is given. The opinion contains no reasoning, but the conclusion only that the employee was not within the excluded casual class and that "that finding was warranted, if not required, by Shannon's Case, 274 Mass. 92, 174 N.E. 235." Turning to Shannon's Case, we find the explanation for what appears to be a ruling against the great weight of authority.

The facts recited in the opinion in that case show that the employer was a manufacturer of cotton goods and was having installed a humidifier and new feed pipes in connection therewith, and it was on this new construction work that the workman was engaged when injured. But this significant and, we think, determinative fact was found, "that the employer maintained a mechanical department for the purpose of performing work in connection with the operation of its plant; that the claimant was employed in this department," etc. And, in concluding the opinion, the court said, "The employer maintained a mechanical department, and the construction of the new feed pipes was, as found by the single member and by the board, a necessary part of the business for which the corporation was chartered. The employer by its own employees, prepared and maintained its plant, and by the same means undertook the work of installing the new humidifier. This could be found to be within its usual course of trade or business."

Now this fact of controlling importance, as we see it, is not mentioned in the Canning Case opinion. No reference is made to the point, two or three times emphasized in the Shannon Case, that the employer regularly maintained a mechanical department for the doing of its repair and construction work, and that this workman was a regular employee in this department. It seems probable that, in later deciding the Canning Case, the point was overlooked. In view of this analysis of the holdings of the Massachusetts Supreme Court, we are not of opinion that the position of the appellant herein is well supported thereby.

It is urged that the company's employment regularly of a chief engineer, also described in the record as chief of maintenance, through whom the company customarily acted in engaging and directing this petitioner, and other occasional workmen, showed an undertaking or assumption by the company of the work of maintenance and repair as a regular part of its business.

However plausible this argument, we are not satisfied to give the language of our Tennessee statute such a construction. To do so would be to fail to give required weight to the word "usual," qualifying "course of trade," etc. In some of the statutes, this word is omitted. Its significance has been given determinative emphasis by the California Supreme Court as hereinafter shown. In some statutes the word "regular" appears instead of "usual" and is properly given like effect, being in this context practically synonymous.

While there appears to be some conflict in the decisions, even when construing similar language, we think the weight of authority supports the view we take.

Oilmen's Reciprocal Association v. Gilleland, 291 S.W. 197, 201, was decided by the Commission of Appeals, which, we are advised is an adjunct of the Supreme Court of Texas.

In that case a bricklayer was employed by a laundry company to wall up a pit near two wells in which pumping equipment for the laundry was to be installed. The court reversed the judgments of the district court and the Court of Civil Appeals (285 S.W. 648), holding, in a well-reasoned opinion, that the bricklayer was not engaged "in the usual course of trade, business, profession or occupation of his employer." After reviewing several cases supporting its conclusion, the court quotes from a contrary holding by the Appellate Court of Indiana (Caca v. Woodruff, 70 Ind.App. 93, 123 N.E. 120) as follows:

"The appellant was engaged in the milling business, the proper conduct of which required a building and machinery. Buildings and machinery used in such a business at times need to have additions and repairs made thereto. These additions and repairs must be expected and provided for. They are necessary in any business such as that in which appellant is engaged. The making of repairs was a necessary part of his business which he was required to anticipate when the necessity of his business demanded, or his convenience dictated."

The Texas court then says: "The above-quotation is representative of the views of those courts sustaining an award like the one in the instant case. Under a holding of this kind, any employment which would be helpful or essential to a business, however infrequently such necessity might arise, would be compensable. With all due deference to the courts upholding this view, we do not think an occasional situation is one arising in the `usual course' of a business. Practically every employment is for a purpose essential to the business of the employer. Otherwise, no such employment would exist. Consequently, such a construction practically eliminates this word `usual' from the statute. This should not be done by the courts. We think, in a few of the states, the courts themselves, by judicial construction, have done what the Supreme Court of California refused to do. The history of this matter in that state is quite interesting. It is given in the brief filed in the Court of Civil Appeals by plaintiff in error as follows:

"`A review of the California decisions would illustrate the contention of appellant that the use of the word `usual' puts a very different meaning on the definition of the employee than if...