Little v. Johnson City Foundry & Mach. Co.

• Court: Tennessee Supreme Court
• Writing for the Court: GREEN, C.J.
• Citation: Little v. Johnson City Foundry & Mach. Co., 158 Tenn. 102, 11 S.W.2d 690 (Tenn. 1928)
• Decision Date: 08 December 1928
• Parties: LITTLE v. JOHNSON CITY FOUNDRY & MACHINE CO. et al.

11 S.W.2d 690

158 Tenn. 102

LITTLE v. JOHNSON CITY FOUNDRY & MACHINE CO. et al.

Supreme Court of Tennessee.

December 8, 1928

Appeal in Error from Law Court of Johnson City; D. A. Vines, Judge.

Suit by A. L. Little against the Johnson City Foundry & Machine Company and others to recover compensation under the Workmen's Compensation Act. Order awarding claimant compensation, and both parties appeal in error. Modified, and suit dismissed.

Cox & Taylor and Carter & McKinney, all of Johnson City, for plaintiff in error.

Miller Depew & Lee, of Johnson City, for defendants in error.

GREEN C.J.

This is a suit to recover compensation under chapter 123 of the Acts of 1919. There was a judgment in favor of the employee below with which both parties were dissatisfied-the employee insisting that he was not allowed sufficient compensation under the statute and the employer insisting that no compensation was allowable. Both parties have appealed in error to this court, and the employer's insurer has filed the record for writ of error.

The employee was a moulder working at the foundry of his employer in Johnson City. This plant was located on the corner of Tennessee street and Walnut street in that place. Walnut street runs east and west, and the entrance to the plant is on that street, the entrance fronting south.

Tennessee street runs north and south, and the employee seems to have lived somewhere in the northern part of the city. His usual route from his home to his work was south on Tennessee street and along the west line of the employer's premises until he reached Walnut street, when he would then turn east on Walnut street and proceed to the entrance of the plant referred to above.

On the morning he was injured the proof tends to show that a number of the employees had been asked by their foreman to come back somewhat earlier than they usually went to work, and the employee left home about 5 o'clock; it being in the month of February. As the employee was coming south on Tennessee street, at a point about 400 or 500 feet from the premises of the employer and about 800 or 1,000 feet from the entrance to said premises, he was run over by an automobile and sustained the injuries for which he makes this claim. As just stated the accident occurred on a public street.

The general rule is that an injury received by an employee on his way to or from his work, away from his employer's premises, does not arise out of his employment, and is therefore not compensable. Schneider on Workmen's Compensation Law, p. 509; Bradbury on Workmen's Compensation, p. 468; note, 49 A. L. R. 425; note, L. R. A 1916A, 331.

This rule is recognized in McClain v. Kingsport Improvement Corporation, 147 Tenn. 130, 245 S.W. 837, Washington County v. Evans, 156 Tenn. 197, 299 S.W. 780, and in other decisions of this court. In the two cases just mentioned, however, the facts did not justify the application of the general rule.

The principle is carefully stated by the Massachusetts court as follows:

"Unless the incidents of employment be exceptional the relation between a master and his servant is suspended when the servant leaves the place of his actual employment at the close of his day's work to go to his home, and again becomes active when after the interval of rest the laborer puts himself in a position where he can do the work of his employment at the place where it is to be performed. Langley v. Boston Elevated R. Co., 223 Mass. 492, 496, 112 N.E. 79." Rourke, Claimant, 237 Mass. 360, 129 N.E. 603, 13 A. L. R. 546.

We see nothing in the facts of this case to take it out of the general rule. It appears that the employee was ordered to return somewhat earlier on the morning he was hurt, perhaps because of extra work, than he usually reported for duty. His relation with his employer was to be resumed on the particular day at an earlier hour than usual. Such relation, however, had not been resumed, and the employee was still on the public highway when he was injured. His injury did not arise out of his employment nor in the course of his employment, but during the suspension of his employment. The employee was to work a longer time on the day he was hurt than was his custom, and he would have gotten more pay. It seems, therefore, that his early return to work, even under the orders of the employer, was an immaterial circumstance in this case.

In Washington County v. Evans, supra, this court quoted from Corpus Juris Advance Sheets on Workmen's Compensation Acts, par. 75, as follows: "As a general rule, accidents which happen to an employee on his way to and from work are...