Loy v. North Bros. Co.

• Decision Date: 02 April 1990
• Citation: 787 S.W.2d 916
• Parties: Mike LOY, Plaintiff-Appellee, v. NORTH BROTHERS COMPANY, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 916

787 S.W.2d 916

Mike LOY, Plaintiff-Appellee, v. NORTH BROTHERS COMPANY, Defendant-Appellant.

Supreme Court of Tennessee,

at Knoxville.

April 2, 1990.

Robert H. Watson, Jr., John C. Duffy, Watson, Reeves and Beeler, Knoxville, for plaintiff-appellee.

J. Gregory O'Connor, Carpenter & O'Connor, Knoxville, for defendant-appellant.

OPINION

FONES, Justice.

In this workers' compensation appeal, the defendant challenges the trial court's judgment on two grounds. First, the defendant argues that the plaintiff's injury did not arise out of and was not in the course of his employment. The defendant also urges this Court to find that plaintiff's claim was barred because his actions constituted willful misconduct. We affirm the trial court's judgment in favor of the Plaintiff.

Defendant, North Brothers Company (hereinafter "North Brothers"), was in the business of installing insulation in buildings. Plaintiff, Mike Loy, worked for North Brothers in its warehouse. Occasionally, Loy would be assigned to a crew that installed insulation. In September of 1987, Loy was a field worker on a crew installing insulation at Baptist Hospital in Knoxville. After a week at this job site, the foreman went on vacation, and Loy was put in charge of the crew.

The crew's responsibility at Baptist Hospital included spraying fireproofing material on steel beams. North Brothers wanted three people on the crew. When the plaintiff was foreman, the crew consisted of Loy, his brother Robbie Loy, and Stanley Carter. Robbie Loy was hired to fill the regular foreman's position on the crew when Plaintiff asked his supervisor to hire his brother.

As foreman, Loy was responsible for keeping track of the other two employees' work time. Also, he was responsible for the insulation job being done correctly. He was paid more for being foreman than he was for working as a regular field worker. Loy's supervisor, Jay Cox, testified that he wanted the job finished by Monday, September 28. During oral argument Defendant's attorney added, "It was a rush job. Admittedly, the company wanted to finish the job and get it out of the way." Apparently, other field crews were scheduled to start work, and they could not start until this crew was finished with the insulation.

On Friday, September 25, Stanley Carter quit his job and left at 3:00 or 4:00 in the afternoon. Loy and his brother discussed finding another crew member and cleaned the work site. They left at 5:00 p.m. without informing North Brothers that Stanley Carter quit and that they needed another crew member. The crew was scheduled to work Saturday and Sunday.

On Friday evening, Loy and his brother decided that they would approach Jimmy Moore, a friend from high school, to see if he was interested in working on the crew. Loy testified that he wanted to determine "if he [Jimmy Moore] wanted to work this job, and if so, take him with us the next morning." Plaintiff further explained, "My plan was to bring Jimmy in the next morning, and I was assured that Jay [Cox] would hire him on the job, because I had been through things like this before." In response to a question concerning the responsibility of the crew supervisor, Cox testified, "If we were short and he knew someone, I would expect him to advise me 'We're short, we need to hire someone, and I have a man we need to replace.' " Cox also stated at trial that if Loy had brought a man to the job Saturday morning, "I would have hired that man."

Loy drove alone to Moore's house Friday night. He did not call Moore because he believed that Moore did not have a telephone since he previously did not have one at his house. Before reaching Moore's house, Loy was injured in a one-car accident. Loy does not remember anything about the drive to Moore's home due to the serious head injuries he sustained. There was, however, one witness to the accident. John Adams, a high school student at the time of the accident, was driving behind Loy that Friday night. There were three passengers in Adams' car. One of the friends died between the time of the accident and the trial, and the other two passengers' whereabouts were unknown.

Adams testified that as he was following Loy, the two cars reached speeds well in excess of the posted thirty mile per hour limit. In describing the road, Adams stated, "It's a two-lane road with no lines ins [sic] the middle, fairly flat, didn't seem too curvy, one curve." When Loy approached the curve in the road, his car hit a bump and skidded off the road. Adams testified as follows:

He speeded up, and I speeded up, and we were going--coming up on a curve. There's like a little raised part in the road where it looked like it had been fixed or something, and I slowed down because I didn't know the road. He hit that bump, slid across on the right side of the road, and then went back across the other side of the road and hit the tree.

He added, "When he hit the bump the rear tires lost traction and went over in the grass on the right side of the road." Adams estimated the speed of Loy's car at between fifty-five and sixty miles per hour.

I.

An injury must arise out of and be in the course of employment to be compensable under the Workers' Compensation Act. Tenn.Code Ann. § 50-6-103. The "arising out of" requirement refers to the origin or cause of the injury. McAdams v. Canale, 200 Tenn. 655, 661, 294 S.W.2d 696, 699 (1956). "In the course of" refers to the time, place, and circumstances of the injury by accident. Id. This Court has held:

[G]enerally, an injury arises out of and in the course of employment if it has a rational causal connection to the work and occurs while the employee is engaged in the duties of his employment; and, any reasonable doubt as to whether an injury arose out of the employment or not is to be resolved in favor of the employee.

Hall v. Auburntown Industries, Inc., 684 S.W.2d 614, 617 (Tenn.1985).

The trial court held that "the plaintiff was engaged in an employment duty when the accident occurred, i.e., trying to get a replacement for the crew he supervised to work the next day." The court concluded, "Thus, the injuries received in the accident arose out of and in the course of employment." North Brothers appeals this holding and argues that Loy did not have the duty nor was he authorized to hire employees. North Brothers also emphasizes that Loy did not have a duty to travel, he did not have prior approval to travel, and he was never reimbursed for travel expenses.

This issue, whether the injury arose out of and in the course of employment, is a factual determination rather than a legal one. McCammon v. Neubert, 651 S.W.2d 702, 704 (Tenn.1983). Thus, our review is governed by Tenn.Code Ann. § 50-6-225(e). The statute requires that our review of findings of fact by the trial court is de novo, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise.

This injury by accident occurred while Loy was driving to Jimmy Moore's home for the purpose of determining if Moore was interested in working on a North Brothers crew. Loy testified that he was going to bring Moore to the work site Saturday morning so that his supervisor would hire him. Loy said that he "had been through things like this before." Jay Cox, Loy's supervisor, testified, "[W]e do solicit workers through our workers." He also stated, "If Mike [Loy] had a new man on the job [Saturday morning] I would have hired that man. This would have permitted Mike to have brought this man to the job."

When addressing the issue of whether an injury arose out of and in the course of employment, the Court in Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 354, 265 S.W. 543, 545 (1924) held as follows:

It may be said that the test is one of contract rather than conduct. If the employee is within the contemplation of his contract, if he is doing that which by his contract, either expressly or by implication, is made his duty, then he is in the course of his employment, however negligent his conduct may be.

Loy's actions in finding a third crew member were within the contemplation of his employment contract as evidenced by his position as foreman, the expressed desire to finish the job by Monday, and North Brothers' policy of...