Forbess v. Starnes

• Decision Date: 25 January 1936
• Citation: 89 S.W.2d 886
• Parties: FORBESS v. STARNES et al.
• Court: Tennessee Supreme Court

Page 886

89 S.W.2d 886

FORBESS v. STARNES et al.

Supreme Court of Tennessee.

January 25, 1936.

Error to Circuit Court, Tipton County; R. B. Baptist, Judge.

Proceedings under the Workmen's Compensation Act by Mrs. Barney Forbess for compensation for death of her husband, Barney Forbess, employee, against E. C. Starnes and others, employers. From an award against them, the employers appeal, and, from an order denying interest and penalty, the claimant appeals.

Award reversed, and proceedings dismissed.

H. R. Boyd and Milton Williams, both of Memphis, for plaintiff in error.

E. B. Klewer, of Memphis, for defendants in error.

DAVIS, Special Judge.

This is a workmen's compensation case, under which the trial court made a statutory award in favor of the surviving widow of Barney Forbess, employee of the defendant. Petitioner has appealed from the court's order denying her interest and 25 per cent. penalty on the recovery, while the defendants have appealed from the award made against them.

The employee was a night watchman at a sawmill operated by defendants. The trial court made a written finding of facts. Omitting the finding as to the employment by defendants, the facts so found by the trial court are as follows: "That on the morning of said killing, the mill operated by said Starnes Brothers Lumber Company was about to start up after a shut down; that J. W. Gwartney was a sawyer and foreman of the mill; that said Gwartney, the foreman, ordered the said Barney Forbess to oil up, and that the mill would start up about nine o'clock that morning; that Gwartney had ordered Rube Jones, a negro, to bring some wood; that the said O'Bryan was off duty at the time and in a room which he occupied as living quarters; that several other employees, including Grover Forbess, Rosco Forbess, and Casey Forbess, were about the mill waiting for the mill to start up when they would go to work; that about 7:30 A. M. the said Barney Forbess told Grover Forbess to ask O'Bryan where the oil can was; that Grover Forbess, in pursuance of this direction, asked the said O'Bryan if he knew where the oil can was; that O'Bryan said to Grover Forbess, `Keep your God damn oil can where it belongs and you will find it'; that Barney Forbess said, `Dry up, you old son of a bitch'; that Charlie O'Bryan came out of his living quarters and went into the file room where Barney Forbess was and struck the said Barney Forbess several times with a walking stick; that Barney Forbess secured a green stick or club and beat O'Bryan on the head with it and then threw O'Bryan down and fell on top of him; that said Gwartney ordered Barney Forbess to let O'Bryan up, which he did; O'Bryan then went back to his living quarters, secured a pistol and that he shot and killed the deceased with the same. At the time of the killing O'Bryan was about seventy-two years old, was crippled and walked with a stick. Barney Forbess was about forty-seven years old."

These facts are supported by material evidence.

It will be observed that there existed between deceased and his assailant no relation of...