McAdams v. Canale

Decision Date20 July 1956
Citation200 Tenn. 655,4 McCanless 655,294 S.W.2d 696
Parties, 200 Tenn. 655 Helen McADAMS v. Drew J. CANALE, d/b/a Canale Amusement Company, and United States Fidelity & Guaranty Company.
CourtTennessee Supreme Court

John R. Gilliland, Ray W. Churchill, Memphis, Canale, Glankler, Montedonico, Boone & Loch, Memphis, of counsel, for appellant Helen McAdams.

Charles L. Neely, Memphis, for appellees.

BURNETT, Justice.

This is a Workmen's Compensation case. Section 50-901 et seq., T.C.A. The trial court dismissed the action of the petitioner because it did not 'arise out of' her employment. She has seasonably perfected her appeal, briefs have been filed and arguments heard. We now have the matter for disposition.

Since the facts in this case are undisputed the appeal presents a single question of law, to wit: Did the injuries received by the appellant arise out of her employment?

The appellant and her employer, Drew J. Canale were the only witnesses. Their testimony in effect establishes the facts as stated by the appellant in her brief.

'Appellant had been in the employ of Drew J. Canale for about five and one-half years before the accident. Canale was the sole owner of his business, and was doing business under the trade name of Canale Amusement Company. The nature of the business was operating coin operated record players and vending machines. Appellant's duties were many and varied. Her duties included bookkeeping, typing, secretarial work, buying records., attending to the banking, and doing considerable driving, both for business purposes and purposes personal to Canale and not connected with the coin operated machine business. At the time of her employment, it was understood and agreed that appellant would be called upon to perform the duties above enumerated, including considerable driving for both business and pleasure purposes, as her employer had previously injured his back and did not like to drive. During the entire time of her employment appellant had been called upon frequently to drive upon missions for her employer which were purely personal to him and not connected with his usual business.

'The trip in question was personal to her employer, but it was not personal to appellant. She had no interest whatsoever in the trip. She made the trip only because she was directed to do so by her employer'.

'Appellant was under the orders and directions of her employer in making the trip. He directed the time of departure, the route, the stops to be made, and all other details.'

As an illustration of the correctness of the summary above her employer testifies:

'A. She was to take care of all the bookkeeping, to do all the typing and other secretarial work, to buy records, do the banking and she was to get a Notary Commission so she would be in a position to execute the contracts which we have to take in our business. I explained to her her hours would not be the same because there would be occasions when she would have to go out in the evening to execute the contracts and perhaps work late to keep the work up.

'Q. During this period of approximately five and a half years, did she work overtime frequently to perform the duties necessary to complete all of the work incident to your business? A. Yes, and I explained to her in the beginning there would be times when I would want her to drive me and do personal missions for me such as shopping for birthday, wedding and Christmas gifts and other things of that nature. She drove my mother and other members of my family to Chicago to a funeral. She drove me to New Orleans on business and on this occasion I asked her to drive me to Yazoo City to the football game. She understood there would be times when she might be asked to do things not directly connected with the business. We never had any disagreement about that.' R. pp. 75-76.

Pursuant to this direction of her employer and while they were on their way to Yazoo City, Mississippi they had an automobile accident in which Miss McAdams was rather severely injured. Her doctors bills ran over $2,000 and there is some permanent injury as a result of this wreck. Apparently the basis of the ruling made by the trial court was that he thought that the injuries did not 'arise out of' her employment and that they were thus not compensable unless they were incurred in carrying out some function of the employer's usual and customary business.

So thus we arrive at the very interesting question for our solution. Here is an employee working for a one man company and who at his direction goes on a personal mission for him and while on this mission she is injured. Under such circumstances where the employer directs the employee to perform this mission is the injury received while on this mission compensable?

We have never had the direct question in Tennessee. There is a very full annotation dealing with this question in 172 A.L.R. pages 378 through 405, wherein cases from many jurisdictions are analyzed and the annotator concluded that whether or not cases of the kind are compensable depends upon the

'--relevant terms of the local workmen's compensation act; and the judicial and administrative constructions thereof.

'--nature of the employer's business.

'--status of the employer as

'(1) an individual owning the business as sole proprietor;

'(2) a partnership or unincorporated association;

'(3) a corporation.

'--nature of employee's regular duties.

'--nature of the task being performed when injury sustained.

'--connection of the person benefited with the employing business, that is, whether he is its sole owner, or an officer, manager, stockholder, or in any way interested therein.

'--whether such task is solely for private benefit of an individual or is partly of benefit to the employing business '--whether such tasks are customarily or only occasionally required.

'--who assigned employee to such task.

'--employee's knowledge or lack of knowledge of private nature of task.

'--where work performed.

'--when work performed (within or outside regular working hours).

'--how employee paid for such work.

'--whether employing business reimbursed by party benefited.

'--terms of employer's compensation insurance policy, and of statute pursuant to which insurance is carried, where insurer opposes the claim.'

Our Act provides, Subsection (d), Section 50-902, T.C.A.

"Injury' and 'personal injury', shall mean any injury by accident arising out of and in the course of employment and shall include certain occupational diseases arising out of and in the course of employment which cause either disablement or death of the employee resulting from the occupational diseases named in § 50-1101.'

'Rising out of employment' refers to the origin of the injury, while 'in the course of employment' refers to the time, place and circumstances. Hendrix v. Franklin State Bank, 154 Tenn. 287, 290 S.W. 30, and others. The injury received must arise 'out of' the employment as well as 'in the course of' employment. Thornton v. RCA Service Co., Inc., 188 Tenn. 644, 221 S.W.2d 954.

Where the employee acts for the employer's benefit the acts are usually held to arise out of the employment, if expressly, impliedly or reasonably authorized. Tallent v. M. C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7.

Where, as here, the employee is doing what he or she is directed to do by the employer (in this instance sole employer) it seems reasonable that an injury which arose during the course of this employment that the employee was directed to do should be compensable. This Court intimated as much long ago when in Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, 545, it said:

'It may be said that the test [that is of employment] is one of contract rather than of 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.'

The Court is holding in this case, among other things, that the word employment will be given a liberal rather than a restricted meaning. In the case now before us the employer plainly says that when he employed this employee her duties were to be many and varied including driving him on many personal missions. In the instant case she was driving him on a personal mission when she received this injury.

The appellant cites the case of National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723, suggestion of error overruled 217 Miss. 560, 65 So.2d 840, as being absolutely on all fours with the instant case and as supporting their theory on appeal. We have read this case, which was vigorously contested below as shown by the dissenting opinion. It is on all fours with the instant case and even one of far more reaching import than are the facts of this case if the employer is held liable herein for the injury received by this employee.

In the Kemp case, Kemp was employed by a partnership composed of one Kent and Dakin. Under the terms of employment Kemp was paid so much per month and was to be in full charge of the gin operations. During the off season it was understood that he was to do such work as directed to do by either of the partners. One of these partners was running for Sheriff of a Mississippi County and he directed Kemp to put up a campaign banner in another town. Kemp, while doing so, was injured as a result of electrical burns and a fall. The Mississippi Supreme Court held that the injuries were compensable. The Mississippi Act, Laws 1948, c. 354 as amended, is very similar to ours and the defense made in that case is the same as made in the instant case.

In the Kemp case the Mississippi Court cites Snyder on Workmen's Compensation, Larson on Workmen's Compensation and many cases supporting its viewpoint. That Court quotes from Larson on Workmen's Compensation, Vol. 1, Sec. 27.40, page 421, as follows [...

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