Employers' Liability Assur. Corp. v. Warren

• Decision Date: 12 February 1938
• Citation: 112 S.W.2d 837,172 Tenn. 403
• Parties: EMPLOYERS' LIABILITY ASSUR. CORPORATION et al. v. WARREN.
• Court: Tennessee Supreme Court

112 S.W.2d 837

172 Tenn. 403

EMPLOYERS' LIABILITY ASSUR. CORPORATION et al. v. WARREN.

Supreme Court of Tennessee.

February 12, 1938

Error to Circuit Court, Davidson County; A. B. Neil, Judge.

Proceeding under the Workmen's Compensation Act by Amelia B. Warren claimant, for the death of her husband, Fred H. Warren opposed by Snyder Bros. Inc., employer, and the Employers' Liability Assurance Corporation, insurer. To review a judgment in favor of the claimant, the employer and insurer bring error.

Affirmed subject to agreed corrections in amount to be made in the decree.

Cornelius, McKinney & Gilbert, of Nashville, for plaintiffs in error.

Goodpasture & Carpenter, of Nashville, for defendant in error.

CHAMBLISS Justice.

The company appeals from an award of compensation to Mrs. Warren and two grandchildren, following the accidental death of her husband, Fred H. Warren, a regular employee of Snyder Bros., Incorporated, of Louisville, Ky. The accident occurred at Lafayette, Tenn., May 12, 1936. Warren was at the time, and had been for three years, employed by Snyder Bros. under a contract entered into in Kentucky, as a special agent and adjuster in the fire insurance business of Snyder Bros., his territory being the State of Tennessee. His duties required him to appoint agents, adjust accounts, make collections, inspect buildings, and adjust losses. He had headquarters in Nashville, but traveled from place to place over the State continuously, as instructed by his employers, following a prearranged itinerary and reporting daily. Among his other duties he was required to inspect insured buildings and report thereon his comments and recommendations on forms or slips provided.

On the day of the accident he had gone to Lafayette to make such inspections. Arriving about noon, he contacted a local agent, George W. Johnson, and with him inspected some thirty-five or forty houses. He returned to his hotel some time after 7 o'clock. There is evidence that he contemplated filling out that evening his report slips, and Mr. Johnson was to join him at his room and assist him in this work, but an electrical storm prevented Mr. Johnson from coming. Meanwhile, Warren seated himself for awhile on a long second-story porch of the hotel on which his bedroom opened. He seems to have been waiting for the return of Mr. Johnson and for the bedroom, which was hot and uncomfortable, to cool off. He had been reading a magazine and, rising to enter his room, he says to pursue the work mentioned, in some way he stumbled and fell over the banister of the porch at the end near which he had been sitting. He was badly injured and, after lingering in a totally disabled condition until the following February, died as the result of this injury.

No issue is raised as to his being an employee of Snyder Bros., or as to the dependency of the petitioners, or as to his having died from this accidental injury.

Summarizing the motion for a new trial, the questions raised therein, to which appellant is restricted here, are: (1) That there is no evidence that the accident and death of Warren arose out of and in the course of his employment; (2) that "the petitioner did not carry the burden of proving that Fred H. Warren had elected to operate under the provisions of either the Kentucky or Tennessee Workmen's Compensation law", Ky.St.1936, § 4880 et seq., as amended; Code Tenn.1932, § 6851 et seq., as amended; and (3) that the award was erroneous in amount according to the terms of the Kentucky statute.

The order of the trial judge, Hon. A. B. Neil, after formal recitals and stating the pleadings, proceeds as follows:

"The Court further finds from the evidence that while Fred H. Warren was employed to perform services for his employer, Snyder Brothers General Agency, in the State of Tennessee, that the contract of employment was consummated in Louisville, Kentucky, and, therefore, in determining the rights between the parties the Court applies the Workmen's Compensation Law of Kentucky as compiled in the official Code of Kentucky.

"That Fred H. Warren had complied with Section 4957 of the Code of Kentucky and that he and Snyder Brothers General Agency had elected under the Kentucky Workmen's Compensation Law to operate and was so operating on May 12, 1936 and prior thereto.

"That on May 12, 1936, at Lafayette, Tennessee, Fred H. Warren sustained an accident which arose out of and in the course of his employment with defendant Snyder Brothers General Agency and as a proximate result of such accident received injuries which permanently disabled him and from which he subsequently died. That Fred H. Warren's average weekly wage amounted to $62.50.

"That Fred H. Warren left surviving him his widow, the petitioner, Mrs. Amelia B. Warren, and two minor grandchildren, Pat and Fred O'Leary, who were wholly dependent upon him for support.

"It is, therefore, ordered, adjudged and decreed that the petitioner, Mrs. Amelia B. Warren, Administratrix, have and recover of defendants the sum of $15.00 per week from May 12, 1936, to February 13, 1937, the same being 39 1/2 weeks, or a total of $592.50.

"It is further ordered, adjudged and decreed by the Court that the petitioner, Mrs. Amelia B. Warren, have and recover of defendants for the benefit of herself and Pat and Fred O'Leary, $12.00 per week, such payments to be made for the period between February 13, 1937, the date of Fred H. Warren's death, and 295 1/2 weeks after said date of February 13, 1937, or until the intervening termination of dependency, but in no event to exceed the maximum amount of Four Thousand ($4,000.00) Dollars.

"In addition the petitioner shall have and recover of the defendants the sum of $100.00 medical and doctors' expenses and $75.00 funeral expenses, and costs of this cause for which let execution issue."

We find it unnecessary to discuss the question raised as to the accuracy of the calculation of the amount of the award, in view of the following comment thereon on the brief of counsel for petitioner, assuming that proper correction will be made in the decree in this court:

"We readily concede under the Kentucky statute that the compensation proper, since the death of Mr. Warren, cannot exceed Four Thousand Dollars plus the allowance for medical and hospital expense totaling $175.00. If the compensation has been calculated to exceed that amount, we concede the correctness of this error. It was not so intended by counsel in drawing the order. Section 4893, subsec. 2, Carroll's Statutes of Kentucky, as amended by Acts 1936-37, 4th Ex.Sess. c. 25, § 3."

Considering now the question whether or not there is evidence that the parties were working as employer and employee under the Kentucky Compensation Law, we find material evidence, uncontradicted, that this was the case. R. W. Snyder, president, of Snyder Bros., the employer, testified unequivocally to this effect; also, that "Mr. Warren had to sign a compensation book which is furnished by the insurance Company"; and also that the employer carried liability insurance with the appellant company, and that the pay roll on which the premiums paid for the insurance was calculated included the wages of Warren. In this situation, neither the employer nor the insurer is in position to question the relationship of the parties as under the Compensation Law.

Learned counsel for appellants refer to provisions of the Kentucky statutes for the evidencing by both employers and employees of their election to come under the Compensation Law. The apparent purpose of these provisions was to afford the parties a means of establishing this status in case of controversy. For example, Ky.St. § 4956, after prescribing a form of notice to be given the board by an employer of his election to operate under the act, concludes: "And said notice *** may be used as evidence in any action by or against said employer in any court *** that said employer has elected to operate under this act." And Ky.St.1936, § 4957, amended in 1937, Acts 1936-37, 4th Ex. Sess. c. 25, § 6, after setting forth a form of election notice to be signed by the employee, concludes, "such evidence shall constitute prima facie proof that the deceased [employee] had himself duly accepted the provisions of this Act."

We think it obvious that, when the employer and employee agree on the fact that both had elected to work under the law and had been doing so for years, these statutory provisions for establishment of the fact of such relationship have no application.

The insistence made on the merits is that there is no evidence to support the finding that the accident to Warren arose out of and in the course of his employment, perhaps more specifically that it did not arise out of his employment, since there can be no question that Warren was at the time in the general course of his employment. We are of opinion that under our cases and the decisions in other jurisdictions there is material evidence that the accident arose out of and in the course of his employment.

In Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W. 75, 76, the pertinent rule was thus stated:

"An injury arises out of the employment when there is apparent to the rational mind, upon consideration of all of the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury."

In Central Surety & Insurance Corp. v. Court, 162 Tenn. 477, 36 S.W.2d 907, 908, in which the employee was employed to travel over a given territory and was injured while going from her hotel to the office, it was said:

"The employment imposes the duty upon the employee to go from place to place at the will of the employer in the performance of duty, and

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