Early-Stratton Co. v. Rollison

• Decision Date: 17 December 1927
• Parties: EARLY-STRATTON CO. ET AL. v. ROLLISON.
• Court: Tennessee Supreme Court

300 S.W. 569

156 Tenn. 256

EARLY-STRATTON CO. ET AL. v. ROLLISON.

Supreme Court of Tennessee.

December 17, 1927

Appeal from Circuit Court, Shelby County; A. B. Pittman, Judge.

Proceeding under the Workmen's Compensation Act by Mary Rollison compensation claimant, for the death of Henderson Rollison opposed by the Early-Stratton Company, the employer, and another. From a judgment for claimant, the employer appeals. Affirmed.

Fitzhugh & Fitzhugh, of Memphis, for appellant.

Cavett & Buchanan, of Memphis, for appellee.

GREEN C.J.

This is a compensation case in which there was a judgment below in favor of the widow of the deceased employee. The employer has appealed in error.

Henderson Rollison was a negro truck driver in the service of the plaintiff in error. McLaughlin, a white man, was shipping clerk for plaintiff in error, and as such had charge of all the truck drivers making city deliveries. On the morning he was killed the deceased returned from making a delivery and was charged by McLaughlin with wasting time on the trip. During the argument which followed, McLaughlin called deceased a damn liar, took him by the collar, and stated he was going to carry deceased to Mr. Stratton, the president of the company. Deceased broke away from McLaughlin and said "You ain't going to take me nowhere, I am a man just like you." McLaughlin then called to another employee of plaintiff in error, named Lem Whitby, who was sitting near McLaughlin's desk just inside the office which opened onto a platform upon which the controversy was taking place. In response to McLaughlin's call, "Come here, Lem," Whitby came out the office door. Just as he came out McLaughlin undertook to strike deceased with his fist. Although the blow seems to have missed deceased, the latter, in dodging, fell to the floor of the platform. As deceased got up, Whitby shot him with a pistol, inflicting a fatal wound.

Whitby was a mechanic in the employ of plaintiff in error, and his duties were to keep the trucks in order and to look after the garage. The garage was located across the street from the office, and Whitby had no authority over the truck drivers, nor did Whitby's duties require his presence in McLaughlin's office.

The proof does not indicate that there was any previous bad feeling between McLaughlin and deceased or between Whitby and deceased. All of these employees appear to have been peaceable men and to have gotten along before this difficulty without any friction. The employer had no reason to expect that trouble would arise among them.

Upon the facts stated, the trial judge, as before noted, held that the death of the deceased was an accident arising out of and in the course of his employment, for which compensation was payable to his dependent widow. We are of opinion that the court below reached the right conclusion. " ' Arising out of' and ' in the course of' employment are not synonymous. The term 'arising out of employment' refers to the origin of the cause of the injury, while 'in the course of employment' refers to the time, place, and circumstance under which the injury occurred." Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30.

Under Acts 1919, c. 123, § 2, subsec. (d), compensation is payable for an "injury by accident arising out of and in the course of employment."

"It is now well settled in these workmen's compensation cases that the fact that an injury is the result of the willful or criminal assault of another does not prevent the injury from being accidental. McNicol's Case, L. R. A. 1916A, 309, and note (215 Mass. 497, 102 N.E. 697, 4 N. C. C. A. 522); L. R. A. 1917D, 112, note; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 P. 398, 10 N. C. C. A. 1; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 P. 491, Ann. Cas. 1917E, 390; Heitz v. Ruppert, 218 N.Y. 148, 112 N.E. 750 [L. R. A. 1917A, 344]; Von Ette's Case, 223 Mass. 56, 111 N.E. 696, L. R. A. 1916D, 641, 12 N. C. C. A. 551; Willis v. Pilot Butte Min. Co., 58 Mont. 26, 190 P. 124; 1 C.J. 390, and cases cited." Stasmos v. State Industrial Commission, 80 Okl. 221, 195 P. 762, 15 A. L. R. 576.

Under the compensation statutes as construed in the foregoing cases, an accident may be an event not expected or designed by the workman himself, although it may have been designed by another. If injury results from such an event to the workman, it is compensable, provided the event arose out of and in the course of employment. This interpretation of the term "accident" is in strict analogy to the meaning given to the term by this court in construing accident insurance policies. Union Casualty Co. v. Harroll, 98 Tenn. 591, 40 S.W. 1080, 60 Am. St. Rep. 873; Insurance Co. v. Bennett, 90 Tenn. 256, 16 S.W. 723, 25 Am. St. Rep. 685.

Clearly, the deceased was killed in the course of his employment. He had been out on one trip, had returned and loaded his truck again, and had gone to the office to get his book to start on another trip when he was shot.

Moreover, we think it quite clear that the killing of deceased arose out of his employment. The shipping clerk, McLaughlin, was in charge of the truck drivers of the plaintiff in error. In the exercise of authority committed to him and in furtherance of the employer's business, McLaughlin undertook to rebuke the deceased for delay on a delivery, and by way of having the deceased further reprimanded McLaughlin attempted to take the deceased before the president of the company. Deceased resisted this effort of McLaughlin, and McLaughlin called Whitby to his aid, and, coming to the aid of McLaughlin, Whitby killed the negro.

If in the effort to carry the deceased before the president of the company to be reprimanded about neglect of the company's business, McLaughlin had injured or killed the deceased himself, it could scarcely be argued that the incident did not arise out of the deceased's...