Hill v. King
| Decision Date | 07 October 1983 |
| Citation | 663 S.W.2d 435 |
| Parties | Dorothy G. HILL, surviving widow, Judy Hill Mitchell, Janet Hill Jones, Jeannie Hill Harris, Jane Hill Dewerff, and James Willard Hill d/b/f and mother, Dorothy G. Hill, all as next of kin of Willard P. Hill, deceased, Plaintiffs-Appellants, v. Dan KING, Williams Aviation Inc., and Robertson County, Tennessee, Defendants-Appellees. 663 S.W.2d 435 |
| Court | Tennessee Court of Appeals |
Thos. W. Schlater and Brenda R. Measells, Nashville, Larry W. Simmons, Springfield, for plaintiffs-appellants.
D. Tracy Shaw and Phillip North, Nashville, for defendants-appellees.
ABRIDGED OPINION
(With the Concurrence of Participating Judges, The Original
Opinion Has Been Abridged For Publication)
By permission, plaintiffs have appealed from a partial judgment in respect to part of their suit against one of the defendants, Robertson County, Tennessee. Plaintiffs seek compensation from the County for the death of Willard P. Hill who lost his life in the crash of an aircraft being used by the Sheriff of Robertson County to transport a prisoner. As amended, the complaint seeks compensation under the Governmental Tort Liability Act or, in the alternative, under the Worker's Compensation Act. This interlocutory appeal has been authorized to review the action of the Trial Judge in dismissing plaintiffs' suit against Robertson County in all respects except benefits allowed by the Worker's Compensation Act. The action of the Trial Judge was based upon a finding that the deceased was an employee of Robertson County and that the compensation for his death was governed exclusively by the Worker's Compensation Act.
Appellees insist that this Court has no jurisdiction to review a judgment regarding workers compensation, citing TCA Secs. 16-4-108 and 50-6-225 which read in pertinent part as follows:
16-4-108 Jurisdiction-Venue--The jurisdiction of the Court of Appeals shall--extend to all civil cases except--workmen's compensation--.
50-6-225--Submission of claim to court upon failure to agree on compensation.
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(d) Any party to the proceedings in the circuit--court may--appeal to the Supreme Court.
The County maintained in force with one insurance company a single insurance policy covering both forms of liability (negligence of employees and workers compensation). Thus, a finding of workers compensation coverage relieves the County (ergo its insurer) from liability for negligence but imposes liability upon the County (ergo the insurer) for worker's compensation benefits.
If the Trial Judge had ruled that there was no worker's compensation liability, then plaintiffs' appeal would without doubt, be properly addressed to the Supreme Court; but there has been no such ruling.
If the County or its insurer had appealed from the ruling that there was workers compensation liability, then the appeal of the County or its insurer would be properly addressed to the Supreme Court; but there has been no such appeal.
That part of the action which was dismissed by the Trial Court and which is the basis of the present appeal is not a worker's compensation suit, but is a negligence action as to which this court has appellate jurisdiction.
In the case of Carpenter v. Hooker Chemical and Plastics Corp., 553 S.W.2d 356 (Tenn.App.1977), a common law negligence case, this Court reversed an order overruling a motion for summary judgment on grounds of worker's compensation coverage, sustained the motion and dismissed the common law suit. Although no issue was made as to jurisdiction of the appeal, the Supreme Court denied permission to appeal; hence it was evidently satisfied that this Court had jurisdiction to decide the appeal.
The Supreme Court holds exclusive jurisdiction of appeals from decisions granting or denying workers compensation. Any party dissatisfied with a decision which imposes or refuses to impose liability under the Worker's Compensation Act may appeal directly to the Supreme Court; but this Court has intermediate appellate jurisdiction of appeals from orders relating to suits for negligence even though the existence or non existence of worker's compensation coverage may affect the right to recover for negligence.
The issue in the present appeal is the right to recover for negligence. That issue is properly before this Court. The issue of worker's compensation coverage is before this Court only as an incident to determination of negligence liability. No award has been granted or denied under the Worker's Compensation Act. The action of this Court will relate only to rights outside the Worker's Compensation Act.
Accordingly, appellee's first issue is found to be without merit, and the issue of jurisdiction is determined adversely to the insistence of appellee.
Appellee also presents the following issue:
2. Whether there is any material evidence to support the court's finding that Deputy Willard P. Hill was an employee of the defendant Robertson County, Tennessee and is therefore limited to the remedies provided in the Worker's Compensation Act of Tennessee.
Appellee insists that, since the Trial Judge has decided that appellee has no negligence liability because appellee is liable under the Worker's Compensation Act, this appeal is governed by the rule of TCA Sec. 50-6-225(e) that findings of fact in worker's compensation cases shall be set aside only if there is no material evidence to support same.
This Court does not agree. The rule just stated applies only to decisions in which workers compensation benefits are awarded or denied. To hold otherwise would permit a defendant to offer "some evidence" of workers compensation coverage and thereby evade a much more onerous negligence liability in spite of a preponderance of evidence to the contrary.
The determination of facts in this appeal will be in accordance with TRAP Rule 13(d), that is, the finding of the Trial Judge will be presumed correct unless the evidence preponderates otherwise. Appellee's second issue is found to be without merit.
Appellants' first issue is as follows:
1. Whether the deceased, Willard P. Hill, was a volunteer employee and covered by Coverage B with $100,000.00 limits or whether the deceased, Willard P. Hill, was an employee of the Defendant, Robertson County, limited to worker's compensation benefits under Coverage A.
The deceased sustained a unique relationship with Dan King, Sheriff of Robertson County. He had been commissioned a deputy sheriff, had received a pistol and uniform, and was authorized to serve process and transport prisoners. Each employee of the Sheriff was permitted to eat one meal at the jail during each tour of duty. The food was the same as that fed to prisoners, and the purpose of this practice was to assure the public that the prisoners were properly fed. Deceased occasionally ate at the jail while on duty. He was paid no salary, could work as much or as little as he chose and, even when scheduled to work, he was not obliged to report for duty. He was reimbursed for fuel used and expenses incurred on official business. He did regularly report to work; and, when he did, he was subject to orders exactly as other salaried officers were.
Several years previous to the incident in question, deceased had been a full time salaried deputy sheriff, but he had discontinued that employment, moved out of the county, entered employment as a truck driver, was certified as medically disabled, had taken early retirement and had returned to Robertson County. He had offered to "help out" the Sheriff as a volunteer without pay and the Sheriff had accepted his offer. He was supplied with a commission, badge, uniform and pistol, and he worked when he was needed and felt like it, but never received any salary. There is no evidence of any discussion of any consideration being promised to deceased as an inducement to deceased to work for the Sheriff.
On April 21, 1980, the dispatcher was ill, and deceased worked in his stead. On April 22, 1980, deceased reported to work as dispatcher, but the regular dispatcher had recovered and returned to work, so deceased's services were not needed as dispatcher on that day.
On the same date, the Sheriff planned to fly his airplane to West Virginia to transport a prisoner back to Robertson County. A salaried deputy had already been designated to accompany him. The presence of deceased in the plane was explained by the Sheriff as follows:
Q. On the date of this tragedy, was Deputy Hill accompanying you for the purpose of retrieving a prisoner?
A. That's right.
Q. He enjoyed working for you, didn't he?
A. Very much. He enjoyed that type of work. He loved it. But at no time did I expect him to come to work when he didn't feel like it. He was not expected to perform any duties when his health would not permit it.
Q. Was there any doubt in your mind at the time of his death that Deputy Hill was performing his duties as deputy sheriff to you?
A. No doubt.
Q. No doubt in your mind?
A. No, sir.
Q. He was not on that plane trip for fun, was he?
A. Well, whether he was having fun or not I don't know.
Q. But you had asked him to assist you so you could return this fugitive from West Virginia; is that correct?
A. Yes, sir.
Q. And on this particular occasion you allowed him to go with you to pick up this person?
A. I authorized his travel with me, yes, sir.
Q. Now, you had another deputy aboard that day, did you not?
A. That's correct.
Q. Let me put the question to you this way: If Pappy Hill had gotten ill or decided at the last minute that he really didn't feel like making this trip, would you not have gone ahead with the deputy that you had and brought this prisoner back?
A. Without Pappy?
Q. Yes, sir.
A. Yes, sir.
Q. So then he was not essential as far as being a deputy sheriff or exercising his authority to go on that...
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