Leonard v. Cranberry Furnace Co.

• Decision Date: 11 October 1924
• Citation: 265 S.W. 543,150 Tenn. 346
• Parties: LEONARD v. CRANBERRY FURNACE CO.
• Court: Tennessee Supreme Court

265 S.W. 543

150 Tenn. 346

LEONARD v. CRANBERRY FURNACE CO.

Supreme Court of Tennessee.

October 11, 1924

Appeal from Law Court, Washington County; D. A. Vines, Judge.

Action under the Workmen's Compensation Act by S. J. Leonard against the Cranberry Furnace Company. Judgment for defendant, and plaintiff appeals. Affirmed.

CHAMBLISS J.

This is an appeal from a judgment dismissing a petition for compensation for a fatal injury to an employee.

The deceased was employed as a laborer to shovel ore as unloaded from freight cars having swinging floor doors, held in position, when loaded, by chains, through which doors the ore was dumped. The loosening of these supporting chains and dumping of the ore appears to have been a duty attended with more danger and calling for a higher degree of skill and experience than the work of shoveling, for which this employee had been specifically and solely engaged, and that this work was specially delegated to others; that, not only was he and his gang of fellow workers not employed to do this work, but that he and they were expressly forbidden to perform it. While no one witnessed the accident, it appears that he was struck by a heavy bar, or wrench, while attempting to use this instrument in loosening the fastenings of these car doors, without orders from, or the knowledge of his employer, or, indeed, of others.

The trial judge, whose findings of fact, if supported by any material evidence, will not be here disturbed under the well-settled rule, found that "it was the duty of the tipple foreman to drop the bottoms of the cars of ore and no part of the duty of the deceased and men of like grade of employment"; that he and his colaborers "had been given positive instructions by said general labor foreman not to drop car bottoms and to have nothing to do with that class of work"; that they would be compensated for any loss of time because of any delay in the setting of the cars on the tipple or the dropping of the bottoms; "that at the time of the injury to deceased he had voluntarily and against positive instructions given him stepped outside the scope of his employment and engaged in work which was no part of his duty or employment, and for which he was not employed, and work which was not required or expected of him, this being work for which the master or defendant had employed and assigned to more experienced and skillful men, the deceased thereby increasing the risk, responsibility, and hazard of the defendant company * * * without the knowledge or consent of the defendant, his employer." And the judgment concludes: "The court is therefore of opinion that the deceased was not injured by an accident arising out of and in the course of his employment by the defendant, and it is accordingly so adjudged and decreed."

Without questioning here his findings of fact, it is insisted that the judgment of the trial court was erroneous. On the facts found as above set forth, which are clearly established by the record, an award of compensation was properly denied.

The pertinent error assigned, and much of the argument of counsel, assumes that the judgment of the court is rested solely upon the theory of willful misconduct in the disobedience of an order or violation of a rule. We do not so understand it.

The case is not controlled altogether by section 10 of the act (Acts 1919, c. 123) dealing with willful misconduct or intentional injuries, but also by the limitation contained in subsection (d) of section 2, restricting the right of recovery to accidents "arising out of and in the course of employment."

In Corpus Juris, Advance Pamphlet on Workmen's Compensation Acts, at page 82, under the general head "In Course of Employment," subhead "Acts Outside of Duties," it is said:

"Where at the time of the injury the employee is engaged in a voluntary act not accepted by or known to his employer and outside of the duties for which he is employed, the injury cannot be said to be in the course of the employment"--citing authorities.

And so--

"If the accident is due to the man arrogating to himself duties which he was not called on to perform, and which he has no right to perform, then he was acting outside the sphere of his employment, and the injury by accident does not arise in the course of his employment." Honnold on Workmen's Compensation, p. 399.

And see numerous illustrations in note on page 403, Id.

In Ruling Case Law it is well said that--

"An injury is received in the course of the employment when it comes while the workman is doing the duty which he is employed to perform." Section 89, vol. 28, p. 797.

The facts of the present case do not call for a consideration of recognized exceptions based upon emergency, including protection or rescue work, specific instructions, or express or implied permission of the employer.

In this connection it is proper to observe that in applying the terms of the act under consideration it is peculiarly true that each case must be decided with special reference to its own facts. Indeed, it is said by eminent authority that "argument by analogy is valueless" in this class of cases. Lord Loreburn, L. C., in Kitchenham v. Steamships Johannesburg (1911) A. C. 417, 4 B. W. C. C. 311....