Hudson v. Thurston Motor Lines, Inc.

• Decision Date: 25 June 1979
• Citation: 583 S.W.2d 597
• Parties: Mark H. HUDSON, Appellant, v. THURSTON MOTOR LINES, INC., Appellee. 583 S.W.2d 597
• Court: Tennessee Supreme Court

Page 597

583 S.W.2d 597

Mark H. HUDSON, Appellant, v. THURSTON MOTOR LINES, INC., Appellee.

583 S.W.2d 597

Supreme Court of Tennessee.

June 25, 1979.

Samuel L. Swann, Springfield, for appellant.

Luther E. Cantrell, Jr., Smith, Davies, Smith & Cantrell, Nashville, for appellee.

OPINION

FONES, Justice.

This is an appeal from the trial court's denial of workmen's compensation benefits to plaintiff Mark H. Hudson, a twenty-three year old truck driver employed by defendant Thurston Motor Lines. The trial court found that Hudson was within the course of his employment at the time of his injury and that he suffered a ninety-two and one-half percent permanent partial disability. The only issue raised on appeal is whether the trial court was correct in holding that Hudson's injury did not arise out of his employment. We reverse.

The material facts upon which that issue revolves were undisputed. Hudson worked as a truck driver, delivering freight for Thurston in the City of Nashville. His employer's records revealed that on the date of the accident, July 1, 1977, at approximately 9:00 a. m. he delivered a trailer load to Paschall Truck Lines and "bobtailed" back to the Thurston terminal. At 10:45 a. m. he was dispatched to Werthan Bag with a cargo consisting of eight rolls of paper. According to Richard Graham, a dispatcher for Thurston Motor Lines, Hudson was advised before he left that after the paper was unloaded at Werthan he would pick up other cargo to be returned to the Thurston terminal. Werthan was located on Eighth Avenue, six or seven miles across town from the Thurston terminal. Graham, testifying with the record of Werthan's calls before him, said that the return cargo was scheduled for pick up at 1:00 p. m. at the request of Werthan. According to Graham and the employer's records, Hudson called in from Werthan at 11:45 a. m., following standard instructions and practice, and Graham told him to "get his lunch and be back at Werthan by 1:00 because the appointment was at 1:00." Hudson's version of that telephone conversation was that he was instructed to "go get something to eat and bring it back and eat while they loaded, where I wouldn't be gone so long, instead of driving all the way across town back to Thurston." Hudson also said that but for the later scheduled loading at Werthan, he would have returned to Thurston and had lunch in the "break room" or at a nearby restaurant on Foster Avenue.

It was undisputed that although the Thurston city drivers could eat when and where they might select, it was expected that they would take into consideration the convenience of the employer and its customers, as well as their own, in selecting the time and place for lunch. Further, it was undisputed that if less than one hour was taken for lunch, the drivers were paid for the difference between the time actually taken and one hour. Parenthetically, we do not regard the discrepancy between Graham's and Hudson's versions of the instructions about lunch as material. It is clear that Hudson's selection of the Kentucky Fried Chicken place a few blocks down Eighth Avenue from Werthan, was for the mutual convenience and economy of the employer, its customer, and perhaps himself.

It was a tragic choice. Hudson drove the tractor-trailer to the Kentucky Fried Chicken establishment located at Eighth Avenue and Jefferson Street, obtained an order to go, and while entering the truck's cab, he was shot by two or three assailants, permanently paralyzing him from the waist down. The motivation for the assault is unknown. Hudson was carrying $195.00 in cash on his person that was not taken, nor was anything taken from the employer's tractor-trailer.

I.

Many cases have reached this Court concerning the statutory requirement that a compensable injury arise out of the course of employment. It is well established under our law, as expressed by the Court in Travelers Ins. Co. v. Googe, 217 Tenn. 272, 279, 397 S.W.2d 368, 371 (1965):

"The phrase, 'in the course of' refers to time and place, and 'arising out of', to cause or origin; and 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 (1964)."

The employer insists that the fact that Hudson was on his lunch break, during which time he was neither under the control nor direction of his employer, precludes an award of benefits as a matter of law. The question of whether lunch-time injuries are compensable involves whether the injury met the course of employment requirement, i. e., a consideration of "time, place and circumstances" factors. See Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30 (1926). Injuries that occur while an employee is furthering or facilitating his employer's business are incurred in the course of his employment. See 1 Larson, Workmen's Compensation Law §§ 14, 15.50 (1978). Generally, injuries received during a lunch or dinner break and while the employee is off the premises are not compensable under our Workmen's Compensation Law. See, e. g., Greenfield v. Manufacturers Cas. Co., 198 Tenn. 452, 281 S.W.2d 47 (1955). It is obvious that the "premises rule" cannot be applied to the factual situation present here. As stated heretofore, Hudson was at a place selected for the convenience of his employer and its customer and his activities, at the time of his injury, were furthering and facilitating his employer's business. We find that the record substantiates the trial court's findings that Hudson's injury occurred in the course of his employment.

II.

The issue of whether the accident arose out of the employment is a more difficult question. The standards that this Court has adhered to, throughout the history of workmen's compensation litigation, although expressed in widely-varying language, center upon a showing of (1) a causal connection between the employment and the injury or (2) a risk incidental to or peculiar to the employment. Coverage has sometimes been rejected on the grounds that the risk or danger that caused the accident and injury was an exposure common to the public. In fact, the trial judge's order denying compensation in this case was predicated upon the statement that "(p)laintiff was exposed only to the risks common to all members of the community in going to eat lunch." Professor Larson classifies the standards noted above as the "peculiar risk test." He summarizes the trend of acceptability of that test as follows:

"Most courts in the past have interpreted 'arising out of employment' to require a showing that the injury was caused by an increased risk to which claimant, as distinct from the general public, was subjected by his employment. A substantial number have now modified this to accept a showing merely that the risk, even if common to the public, was actually a risk of this employment. An important and growing group of jurisdictions has adopted the positional-risk test, under which an injury is compensable if it would not have happened but for the fact that the conditions or obligations of the employment put claimant in the position where he was injured.

The peculiar-risk test, requiring that the source of harm be in its nature (as distinguished from its quantity) peculiar to the occupation, and the proximate-cause test, requiring foreseeability and absence of intervening cause, are now largely obsolete." Larson, Supra § 6.00.

We think it may be an oversimplification to classify various jurisdictions as following the peculiar-risk, the positional-risk or the actual-risk test, etc. In any event, the result we reach in this case is not to be construed as an adoption of the positional-risk test, or an abandonment of the peculiar-risk test.

Nevertheless, the standards employed by this Court in deciding whether accidents arise out of employment have led to diverse results.

In Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613, 11 S.W.2d 672 (1928), the trial judge sustained a demurrer to plaintiff's declaration seeking workmen's compensation for an injury sustained when a ten year old boy shot him in the eye with an air rifle. The boy's father had brought his vehicle to the employer's garage for repairs, accompanied by his son and two other minors. The boys were playing about the premises and employee was sweeping out the showroom when the shooting occurred.

The Court held that the injury was the result of conditions inseparably connected with the public service given by the petitioner's employer to his patrons and that the injury could be fairly traced to the employment as the contributing proximate cause.

In Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103 (1937), Scott was a driver-salesman of Nehi Bottling Company and was servicing a customer of his employer when he was shot and killed by an armed assailant, who may or may not have intended to rob a dog wagon lunchroom. It was stipulated that Scott was shot while in the course of his employment. The Court held that the accident did not arise out of the employment.

In response to the argument that Scott's employment caused him to be in that place of danger, the Court said it was not enough that the accident would not have happened if he had not been in that place but that it must have resulted from something he was doing in the course of his work or from some peculiar danger to which the work exposed him. The Court concluded that "walking in on a hold-up cannot be said to have been a peculiar danger to which his work exposed him" and therefore no causal connection was found between Scott's employment and his injury. 171 Tenn. at 484, 105 S.W.2d at 105.

Two years after Scott v. Shinn, supra, this Court concluded that a travelling man's death in a hotel fire of unknown origin arose out of his employment. Carter v. Hodges, 175 Tenn....