Hankins v. Camel Mfg. Co.

• Decision Date: 02 January 1973
• Citation: 492 S.W.2d 212
• Parties: Elizabeth HANKINS, Appellant, v. CAMEL MANUFACTURING COMPANY and Aetna Casualty and Surety Company, Appellees.
• Court: Tennessee Supreme Court

Page 212

492 S.W.2d 212

Elizabeth HANKINS, Appellant, v. CAMEL MANUFACTURING COMPANY and Aetna Casualty and Surety Company, Appellees.

Supreme Court of Tennessee.

Jan. 2, 1973.

Rehearing Denied April 2, 1973.

W. E. Fitzgerald, W. Conway Garlington, Knoxville, for appellant.

Jerry A. Farmer, Knoxville, for appellees.

OPINION

JOHN W. WILSON, Special Justice.

This compensation case comes on appeal from the action of the Circuit Court of Knox County dismissing the petition for compensation filed against Camel Manufacturing Company and their insurance carrier, Aetna Casualty & Surety Company.

For convenience, the parties hereinafter will be referred to as employee and employer. The employee, forty years of age, had worked for the employer Camel Manufacturing Company for about eleven years, as a sewing machine operator. The employer's place of business was in a building located at 329 South Central Avenue, Knoxville. The employer was the sole occupant of the building, which had three means of ingress and egress, front, side, and rear or alley. The offices of the employer were located on the first floor. Access to the third floor was by means of two elevators and the stairway. The clock used for employee to clock in and out was located on the first floor. At 9:00 A.M. and at 2:00 P.M. there was a rest period of ten minutes. There was a lunch period of thirty minutes, for which period the employees were not paid. The time of this lunch period was at 11:30 A.M. the beginning and ending of which was announced by the ringing of a bell. When the beginning of the lunch period was announced, a number of the employees would go to a lunch wagon parked in the alley to the rear of employer's building and, in going to this lunch wagon to purchase hot lunches, they would use, as a means of egress from the building, a door opening into the alley from employer's building.

On February 3, 1971, when the bell rang for the lunch break, the employee left the third floor, where she worked, rode one of the two elevators to the first floor, then proceeded to the door of the building opening onto the alley, intending to purchase food from the vending truck and to return to eat lunch at her machine. The employee's testimony is that, as she started through the door, she slipped on a concrete slab which had an accmulation of ice on it, causing her to fall out into the alley. After she fell, she was carried back into the mill and sent to the company doctor, who, in turn, referred her to Dr. Vernoon Young, an orthopedic surgeon, who admitted her to Fort Sanders Hospital, where her injury was diagnosed as a comminuted fracture of the right wrist and an open reduction and fixation with screw was performed at the fracture site.

Mr. T. P. Lawson, Vice President of employer, testified that he did not see employee fall but arrived as she was being picked up. It further appears from the testimony of Mr. Lawson that the employees were not forbidden to use any of the three entrances to the building; that the company uses a building across the alleyway and workmen and material cross back and forth over the alley between the two buildings and through the doorway where employee fell. Mr. Lawson further testified that where the employee says she fell was on the employer's property and that the employer kept calcium fluoride at this back door during bad weather to apply at the doorway and alley when there was icing condition to aid their employees entering and exiting through the door. That on this particular morning it had been sleeting off and on and the door area had been salted earlier that morning. That, in addition to salt, sand was used in the alley because a drain in the alley causes water to collect.

Two employees of the employer testified on behalf of the employer. Witness Akins stated that he arrived after employee fell and helped pick her up. Witness Reed testified that he was walking out of the building at the same time the employee Hankins was, but did not see her slip, initially, but saw her sliding in the alley.

Mr. Lawson further testified that the employer had no connection with the lunch wagon, did not direct its employees on where to take lunch, nor what exits from the building its employees were to use in going to lunch.

In rebuttal, the employee testified that there were no white particles on the doorstep on the day she fell. It further appears that the employee had, at times, been sent from the building where she regularly worked to the building across the alley, to work, and, at which time, she used the door exiting on the alley.

The only assignment of error is that the learned trial judge erred in holding that the employee's accidental injury did not arise out of and in the course of her employment.

We note in a memorandum opinion filed by the trial court that he stated there were three doors to the public alley at the rear of the building. This is an inadvertence for there is no dispute about there being three entrances to the building, front, side and back, and there is no testimony that all entrances were from the alley. We note from the trial court's memorandum filed, as follows:

'The Court does not make a finding of fact that the fall occurred on the premises or off because that is not necessary in deciding this case. Actually falling on the premises of an employer is not determinative. Travelers Ind. Company v. Charvis (221 Tenn. 593), 428 S.W.2d 797.

Can it be said petitioner was injured by an accident arising out of and in the course of her employment. She was not at her duty station working, so there cannot be an injury arising out of and in the course of her employment unless there are exceptions which are applicable.

(The phrase) in the course of, refers to time and place, and arising out of, to oause or origin; an injury by accident to an employee is, in the course of employment if it occurred while he was performing a duty he was employed to do; and it is an injury 'arising out of employment if caused by a hazard incident to such employment.' Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940. See also Travelers Ins. Co. v. Evans (221 Tenn. 199), 425 S.W.2d 611.

There are exceptions to this general proposition of law when an employee is injured going to and from his work. Though no cases are cited, the Court feels that the same law applies to a lunch break going to have lunch or returning from lunch.

That law is as follows:

'Injury by accident arising out of and in the course of employment means in so far as the compensability of the activities of the employee in going to and returning from work is concerned, that if the process of going to and from is furnished by the employer, or is required by the employer to be done in a certain manner or over a certain way, and this submits the employee to a definite special hazard, then in such event such accidents are compensable . . .' Smith v. Camel Mfg. Co. (192 Tenn. 670), 241 S.W.2d 771, at 774--5.

Does the petitioner come under this exception?

The Court feels not. She was not required to follow any one route leaving the building. Actually, there were three exits and she had an option.' Bill of Exceptions, pp. 13--14.

As quoted above, the trial court refers to the quoted language in Smith v. Camel Manufacturing Company (1951) 192 Tenn. 670, 241 S.W.2d 771. We note also the employee relies on Smith v. Camel Manufacturing Company, supra, as follows:

'It is apparent from the foregoing quotation that this Court has rejected the general statement that an accident suffered by an employee in going to and coming from work was compensable if it occurred on the employer's premises or so near the place of employment as reasonably would be regarded as in effect at the place, unless there was some special considerations as the requirement of use of a special road or way, or if the manner of travel or the way of travel was within the contemplation of the contract of employment.' Employee's Brief, p. 8.

It is also noted the employer relies on Smith v. Camel Manufacturing Company, supra, as follows:

'. . . It seems to us and we hold that under the language of our Statute, Code Section 6852, (T.C.A. § 50--902) that the terms 'injury by accident arising out of and in the course of employment' means in so far as the compensability of the activities of the employee in going to and returning from work is concerned, that if a process of going to and from work is furnished by the employer, or is required by the employer to be done in a certain manner or over a certain way, and this submits the employee to a definite special hazard, then in such event such accidents are compensable, the employee is not to be considered in the course of his employment until he has actually arrived at his place of employment ready to begin his activities in the employer's work unless those qualifications last above said are applicable.' 241 S.W.2d 771, at 774--775.

In Smith v. Camel, supra, the employee fell on the public sidewalk 6 to 20 feet from the entrance to the building where she worked. We have examined a number of other cases called to our attention, including James v. Sanders Mfg. Co. (1958) 203 Tenn. 274, 310 S.W.2d 466; Bennett v. Vanderbilt University (1955) 198 Tenn. 1, 277 S.W.2d 386; Mallette v. Mercury Outboard Supply Co. (1959) 204 Tenn. 438, 321 S.W.2d 816; Travelers Indemnity Company v. Charvis (1968) 221 Tenn. 593, 428 S.W.2d 797, and Potts v. Heil-Quaker Corporation (1972) Tenn., 482 S.W.2d 135. All of the mentioned cases are in the light of facts where the employee is using a public way and has not reached the place of employment, has left the place of employment and is again on a public way, or parking lot, or the use of a required route.

After careful examination of all the authorities mentioned above, we have reached the conclusion that the law announced in those cases does not provide the answer to the question presented in the case now under consideration.

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