Jackson v. Clark & Fay, Inc.

• Decision Date: 21 May 1954
• Citation: 197 Tenn. 135,1 McCanless 135,270 S.W.2d 389
• Parties: , 197 Tenn. 135 JACKSON v. CLARK & FAY, Inc. et al.
• Court: Tennessee Supreme Court

Page 389

270 S.W.2d 389

1 McCanless 135, 197 Tenn. 135

JACKSON v. CLARK & FAY, Inc. et al.

Supreme Court of Tennessee.

May 21, 1954.

Rehearing Denied July 23, 1954.

McDonald, Kuhn, McDonald & Crenshaw, Memphis, for plaintiff in error.

Louis E. Peiser, Memphis, for defendant in error.

TOMLINSON, Justice.

Alberta Jackson seeks compensation under the Workmen's Compensation Statute, Code, Sec. 6851 et seq., for the death of her husband, Sam Jackson. It is a fact that his death occurred in the course of his employment by Clark & Fay, Inc. He was killed by an act of God, to-wit, a storm, while being transported by employer over the public highway in employer's truck from his place of employment at the end of the day's work to employer furnished sleeping quarters some miles away. The determinative question is whether this injury and resulting death arose out of his employment.

This appeal is from the judgment of the Probate Court allowing compensation. Statements in the opinion of the Trial Court give rise to the impression that it considered the case compensable because Jackson was at his place of employment at the time of the accident, and doing that which his employer expected, to-wit, being transported back to his sleeping quarters. But our decisions are very clearly to the contrary. In Thornton v. RCA Service Company, Inc., 188 Tenn. 644, 646, 221 S.W.2d 954, 955, it was held that 'the mere presence at the place of injury because of employment will not result in the injury being considered as arising out of the employment', citing several of our cases so holding.

In order to hold this case compensable under our statute each of two questions must be answered in the affirmative. The first of these questions is this: Was the danger of being injured by a storm while traveling to and from his work in a truck along a public highway a danger peculiar to Jackson's work, rather than a danger common to the neighborhood through which the storm happened to be raging at the time it struck the truck which was traveling through that neighborhood? An affirmative answer is required if the death of Jackson is to be held compensable becauee 'the causative danger must be peculiar to the work and not common to the neighborhood. * * * an injury purely coincidental, or contemporaneous, or collateral, with the employment, * * * will not cause the injury or seizure to be considered as arising out of the employment.' Scott v. Shinn, 171 Tenn. 478, 482-483, 105 S.W.2d 103, 105. (Emphasis supplied.)

The second of these two questions (actually, it is embraced within the first) is: Could such an injury reasonably have been contemplated if it had been thought of at the time of the employment as a risk incident to Jackson's duties? If not, then the case is not compensable, because although the injury "need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." Scott v. Shinn, supra.

In the numerous conferences of this Court concerning this case there have been mentioned in support of the Trial Court's decree our following decisions: Central Surety & Insurance Corporation v. Court, 162 Tenn. 477, 36 S.W.2d 907; Mayor and Aldermen of Town of Tullahoma v. Ward, 173 Tenn. 91, 114 S.W.2d 804; W. C. Sharp Drug Stores v. Hansard, 176 Tenn. 595, 144 S.W.2d 777; Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211; Carmichael v. J. C. Mahan Motor Co., 157 Tenn. 613, 11 S.W.2d 672; Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649; T. J. Moss Tire Co. v. Rollins, 191 Tenn. 577, 235 S.W.2d 585; Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 977.

While some of the above mentioned cases seem to be border line decisions which should be confined to their particular facts, nevertheless, upon reading them it will be found that in each the injury arose from a foreseeable risk incident to the work which the employee was required to do, except Whaley v. Patent Button Co., supra. There the Court found evidence which seemed to satisfy it of a causal connection between the conditions under which the work was required to be performed and the resulting injury in that the assault was made upon the employee because of the fact that he was operating one of the machines, a job from which the aggressor had been discharged. The majority of this Court is of the opinion that no one of these cases is authority for the conclusion reached by the Trial Court in the case now being considered.

In dealing with that particular question with which this case is concerned, the circumstance under which the injuries of employee are compensable is clearly brought out in Carter v. Hodges, 175 Tenn. 96, 132 S.W.2d 211, and the circumstance under which the employee's injuries are not compensable is outlined with equal clarity in Scott v. Shinn, supra [171 Tenn. 478, 482-483, 105 S.W.2d 105].

In Carter v. Hodges, supra, the duties of employee, Hodges, made it necessary for him to frequently spend nights in hotels. So that was a part of his employment. He lost his life by reason of a fire which destroyed the hotel wherein he was so staying. It was held to be a compensable injury on the ground that the danger of being injured by the hotel burning is a danger incident to staying in a hotel at night. No reasoning is necessary to sustain the statement that the burning of the hotel is a foreseeable hazard. The rigid laws aimed at prevention of fires in hotels, and laws with reference to fire escapes therein, and other such laws, conclusively illustrate that the hazard of fire in a hotel is generally recognized. Thus it was a foreseeable hazard incident to the employment; therefore, compensable.

On the other hand, in Scott v. Shinn, supra, the employee walked in a store for the purpose of delivering bottled beverages, a duty of his employment. He was shot and killed by a man who entered for the purpose of robbery. This Court held that this case was non-compensable, saying: 'We are unable to see any causal connection between the nature of Scott's employment and his injury. Walking in on a holdup cannot be said to have been a peculiar danger to which his work exposed him.'

In both Carter v. Hodges, supra, and Scott v. Shinn, supra, the employee was at the place expected by the terms of his employment and doing that which was expected of him by reason of his employment. In the Carter case the injury was held compensable because it came naturally from a foreseeable hazard incident to the employment. In the Scott case the injuries were held non-compensable because they resulted from a reasonably unforeseeable happening not a hazard incident to the employment.

In Porter v. Travelers Insurance Company, 163 Tenn. 526, 43 S.W.2d 1066, 1067, employee, Porter, while performing his duties, at the time and place expected of him, happened to walk into a group of men who were being robbed. The robber shot Porter. The case was held to be non-compensable with this statement: 'This employee met his death, not because he was a collector of the ice company, but because he was numbered in the crowd. We find no causal relation between the employment and the accident.'

In Thornton v. RCA Service Company, Inc., 188 Tenn. 644, 221 S.W.2d 954, 956, employee Thornton, in the course of his employment, stopped at a restaurant for dinner, as was expected of him. He was assaulted and severely injured by a stranger who was either drunk or insane. The case was held non-compensable.

'because the assault did not arise out of any risk peculiar to the employment of the party assaulted, and was not made because of the employment, or identity of his employer. * * * He was not subjected to any more or different risk from that of any other member of the public who happened to be in this restaurant at that time. The fact is that a man who was either crazy, or drunk or otherwise irresponsible, just happened to select Thornton from those present as the person upon whom he would make the assault.'

The injuries in the case at bar cannot be held compensable without overruling the cases above discussed, in the opinion of the majority of this Court. Each of them simply followed the fundamental rule stated in Hendrix v. Franklin State Bank, 154 Tenn. 287, 290-291, 290 S.W. 30, 31, as follows:

"It is essential that the injury to the employee which the law obligates the employer to compensate for be one that by the exercise of foresight the employer might have contemplated as a result of engaging in the business and contracting with his workmen."

It is obvious in the case at bar that the employer, Clark & Fay, could not by the exercise of foresight have contemplated that Jackson might be killed by a storm, because he was being transported in a truck over a public highway to and from his place of employment.

Acts of God are held compensable when the employee, by reason of his employment, is subjected to a hazard from such act of God not common to the general public, but peculiar to the nature of the employment and to the conditions under which that employment is required to be performed. See Schneider's Workmen's Compensation Law, Second Edition, Volume 1, Section 298; and 58 American Jurisprudence, page 760, Section 260. Our sun stroke cases resulting from overheat brought on by exertion in the hot sun in performing the duties of the employment are illustrations of an act of God creating a foreseeable hazard peculiar to the work of the employee as distinguished from a hazard common to the general public. It is generally known that the danger of a sun stroke under such conditions exists.

But there is no such situation in the instant case as that immediately above detailed. This storm was not a danger peculiar to the work in which Jackson was engaged. It was a danger common to the general public at the time and place where it occurred. It was not a hazard incident to his employment. It...