Mashburn v. Ne-Hi Bottling Co., NE-HI

• Decision Date: 29 April 1950
• Docket Number: NE-HI
• Citation: 229 S.W.2d 520,191 Tenn. 135,27 Beeler 135
• Parties: MASHBURN v.BOTTLING CO. et al. 27 Beeler 135, 191 Tenn. 135, 229 S.W.2d 520
• Court: Tennessee Supreme Court

Page 520

229 S.W.2d 520

MASHBURN v. NE-HI BOTTLING CO. et al.

27 Beeler 135, 191 Tenn. 135, 229 S.W.2d 520

Supreme Court of Tennessee.

April 29, 1950.

Rehearing Denied July 15, 1950.

McAllester & McAllester, Chattanooga, for plaintiff in error.

R. A. Davis, Athens, Frank N. Bratton, Athens, for defendant in error.

GAILOR, Justice.

This is a case rising out of the Workmen's Compensation Act, Code, Sec. 6851 et seq., wherein petitioner, Mashburn, sought compensation for injuries received while employed by the respondent, Mrs. B. P. Smith, who operates the Ne-Hi Bottling Company in McMinn County.

Petitioner is the brother-in-law of Mrs. Smith, and, was the manager and general factotum of the small bottling business. To give access and egress to the plant for trucks, it became necessary to construct a driveway, and while petitioner was hauling concrete blocks to make a bed or foundation for this driveway, the truck which he was driving overturned, and he received the injuries for which compensation is sought, and which were the loss of his right eye, the severance of nerves impairing hearing in his right ear, and a wound in the right side of his head which had uncovered a portion of the brain, and was still draining at the time of the second trial of the case which was had on March 16 1949, some 17 months after the accident which occurred on October 17, 1947.

The Trial Judge awarded compensation for total permanent disability, and later overruled motion for a new trial, allowing 30 days for the preparation and filing of a bill of exceptions. The defendant filed the bill of exceptions within the time allowed, but for reasons unexplained in the record, did not perfect the appeal. On November 23, 1949, the record was filed by defendant for writ of error. Under these facts and this state of the record, the scope of our review is the same as that on an appeal in the nature of a writ of error. Code secs. 9063, 6885.

We will not consider any assignment of error which was not made a ground for motion for new trial and seasonably brought to the attention of the Trial Judge. Coleman Co. v. Isbell, 159 Tenn. 459, 19 S.W.2d 243; Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 125, 127, 140 S.W. 1066; Bostick v. Thomas, 137 Tenn. 99, 101, 191 S.W. 968.

This being a Workmen's Compensation case, we will only review the findings of fact by the Trial Judge so far as may be necessary to determine that such findings were supported by some material evidence. McBrayer v. Dixie Mercerizing Co., 178 Tenn. 135, 156 S.W.2d 408; Central Franklin Process Co. v. Gann, 175 Tenn. 267, 133 S.W.2d 503; Anderson v. Volz Const. Co., 183 Tenn. 169, 191 S.W.2d 436; Floyd v. Indemnity Ins. Co., 184 Tenn. 381, 199 S.W.2d 106.

So limited, this appeal presents only two questions subject to our review:

(1) Was there material evidence to support the finding of the Trial Judge that the injuries to petitioner rose out of and in the scope of petitioner's employment, so that such injuries were compensable under the Act.

(2) Was there material evidence to support the finding of the Trial Judge that as a result of the accident the petitioner had suffered permanent total disability.

As to the first question,--according to Mrs. Smith's testimony, petitioner was working on the driveway during a slack time at the bottling plant and on her orders and direction. The driveway was to be used by vehicles on the business of the Bottling Company, and petitioner was being paid for his work on the driveway by the Bottling Company. We agree with the learned Trial Judge that the rule made in U. S. Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184, is controlling. After citing Gibbons v. Roller Estates, Inc., 163 Tenn. 373, 43 S.W.2d 198, and many other cases from this and other jurisdictions, to support the rule that where the employer is not a contractor or builder, injuries received by an employee on a construction project not an incident of or related to the real business of the employer, are not within the scope of the employee's employment, and so not compensable under the Act, this...