Gentry v. Lilly Co.
| Citation | 225 Tenn. 708,476 S.W.2d 252,3 Pack 708 |
| Parties | , 225 Tenn. 708 Irene GENTRY v. The LILLY COMPANY and Reliance Insurance Company. |
| Decision Date | 20 December 1971 |
| Court | Tennessee Supreme Court |
Wilburt J. Chiapella, Chiapella & Parish, Memphis, for appellant.
John H. Harris, Jr., Chandler, Manire, Johnson & Harris, Memphis, for appellees.
Irene Gentry filed her bill against The Lilly Company, the employer of her husband, Ralph Gentry, and against its insurance carrier, to recover on behalf of her husband's five dependent minor children and on her own behalf the death benefits provided by the Workmen's Compensation Law. The Chancellor decreed that when he was killed, Ralph Gentry had deviated from the scope of his employment and that his death was not compensable. He dismissed the complainant's bill and she has appealed.
Ralph Gentry was a mechanic employed by The Lilly Company to service fork lifts and other equipment. Usually he worked in Memphis but from time to time he serviced equipment at other places.
On June 15, 1970, Gentry left Memphis in a truck owned by The Lilly Company to go to Mississippi to work on the machines of several of the company's customers. The company had furnished him a service order for each piece of equipment he was to repair. The company required that he maintain daily cost cards on which he showed his itinerary and the time he had spent on each job.
On the afternoon of the fifteenth Gentry worked in Tupelo and Aberdeen, Mississippi, and then drove to Corinth, Mississippi, where he spent the night. On the next day he worked in Corinth, servicing equipment in two locations, and spent that night there. On that day, the sixteenth, he had a telephone conversaton with The Lilly Company's shop superintendent, Bill White, and arranged to have certain parts sent him. Mr. White gave him another service order which he remembers was for work at the Wurlitzer Plant in Holly Springs, Mississippi.
On the seventeenth Gentry worked in Corinth until five o'clock in the afternoon and then went to Holly Springs. After the call at the Wurlitzer plant he had no other work and in due course would thereupon have driven back to Memphis. Under the company's rules he would have returned his truck to the office of The Lilly Company if he had arrived there before five o'clock, but if after five o'clock he was allowed to take the truck to his home.
Ralph Gentry was killed in a collision between the truck he was driving and another vehicle on June 18, 1970, at about twenty minutes after one o'clock in the morning on Swinnea Road, less than two miles from his home and on what was the direct route between Holly Springs and his home.
Both Gentry and the driver of the other vehicle were killed in the collision. The passenger in the other vehicle was seriously hurt and had no recollection of the occurrence. The record contains no evidence about the condition of the two vehicles or their respective positions after they had collided.
The medical examiner, a pathologist, drew samples of blood and of urine from the bodies of Ralph Gentry and the driver of the other vehicle involved in the collision. Gentry's blood had an alcohol reading of .23 per cent, which the pathologist testified was sufficient to evidence intoxication.
Gentry's business at the Wurlitzer plant in Holly Springs had been concluded at about half past six in the afternoon. The distance home was about fifty miles and the time required to drive it was about an hour; but the fatal collision did not occur for nearly seven hours and there is no accounting for this long lapse of time.
The Chancellor found and the defendants insist that the lapse of time and the intoxicated condition of Gentry at the time of his death establish a deviation from the employment which precludes the recovery of workmen's compensation benefits. This is the only issue presented by the appeal. If the delay or the intoxication or their combination constituted a deviation, then there can be no recovery; but if there was no deviation when the fatal collision took place, then the complainant is entitled to the recovery for which she has sued.
Professor Larson in his 'Workmen's Compensation Law' has said:
'30.00 Misconduct of the employee, whether negligent or wilful, is immaterial in compensation law, unless it takes the form of deviation from the course of employment, or unless it is of a kind specifically made a defense in the jurisdictions containing such a defense in their statutes.'
He also said:
The applicable Tennesse statute is carried into the Tennesse Code as Section 50--910 and is as follows:
The burden of proving that the injury was due to misconduct or intoxication rests on the employer. Frost v. Blue Ridge Timber Corp., 158 Tenn. 18, 11 S.W.2d 860 (1928); Coleman (American Casualty Co.) v. Coker, 204 Tenn. 310, 321 S.W.2d 540 (1959). In the record before us we have no proof from which it may be found that the intoxication of Ralph Gentry caused or contributed to the collision in which he was killed. The record does not show on which side of the roadway were the respective vehicles, what were their rates of speed, or the other things that cause and contribute to motor vehicle collisions.
We quote from a recent opinion of the Supreme Court of Wisconsin:
'On the issue as to causal connection between intoxication and accident, the employer and insurance carrier presented no additional proof, by way of expert testimony or otherwise. Instead they relied to prove causation upon the absence of evidence as to tire blowout, steering mechanism failure, deer crossing the road or other distraction that might account for the car hitting the bridge abutment. In meeting a burden of proof, absence of testimony is not the same as presence of testimony. It is true that the employer and insurance...
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...174 A.2d 474) the coverage was properly found to have resumed after such deviations as had occurred had been terminated. In Gentry v. Lilly Co., Supra, 476 S.W.2d 252, Ralph Gentry was a service man who had, at 6:30 P.M., finished his last job at a customer's place of business. He had about......
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