McDonald v. Dunn Const. Co., Inc.

• Decision Date: 03 February 1945
• Citation: 185 S.W.2d 517,182 Tenn. 213
• Parties: McDONALD v. DUNN CONST. CO., Inc., et al.
• Court: Tennessee Supreme Court

185 S.W.2d 517

182 Tenn. 213

McDONALD v. DUNN CONST. CO., Inc., et al.

Supreme Court of Tennessee.

February 3, 1945

Error to Circuit Court, Shelby County; J. P. M. Hamner, Judge.

Suit for wrongful death by Mrs. Robert Emmit McDonald against Dunn Construction Company, Incorporated, and Polk Smartt, doing business as Polk Smartt Pavlng Company. A judgment for defendants was affirmed by the Court of Appeals, and the plaintiff brings certiorari.

Affirmed.

James L. Roulhac and E. F. McClure, both of Memphis, for plaintiffs in error.

Charles L. Neely and O. W. Wells, both of Memphis, for defendants in error.

GAILOR Justice.

Plaintiff, Mrs. Robert Emmit McDonald, filed suit in the Circuit Court of Shelby County against the defendants Dunn Construction Company and Polk Smartt, for the wrongful death of her husband who was employed by the defendants as a civilian guard on construction work in which defendants were engaged as contractors with the United States Navy at the Millington Air Base in Shelby County, Tennessee. The original declaration based defendants' liability on common law negligence, alleging that at the time he met his death McDonald was a 'casual employee' within the meaning of Code, § 6856(b). When this declaration was met by a plea in abatement plaintiff amended her declaration to allege an alternative ground of liability which was--that at the time of his death McDonald was an employee of the United States Navy by reason of the contract of the Navy and the defendants, under a term of which the Navy had reserved the right to control the civilian guards employed by defendants.

Having heard all the evidence, the trial court granted motion for peremptory instruction, finding that at the time of his death McDonald was not a 'casual employee', and that he was in the employ of the defendants at the time, and not in the employ of the United States Navy. On appeal to the Court of Appeals this judgment was affirmed by a divided Court, we granted certiorari, have heard argument and the case is now before us for disposition.

The acquisition, construction and completion of the Air Base at Millington can only be characterized as a 'vast' or 'tremendous' war project. The defendants were responsible for the entire construction and all its incidents. At times they had between 8,000 and 10,000 employees on the project and as many as 500 civilian guards. These guards were under the immediate command or direction of a civilian chief or foreman. They were worked in squads and had various duties. They guarded equipment, patroled the grounds, prevented and put out fires and also saw that no one entered or left the grounds who was not properly accredited either by the Navy or the contractor. Early in the progress of construction, the hundreds of acres of ground involved in the project were surrounded by a wire fence. There were several gates or openings in this fence. The gate where the accident here happened was not the main gate but was an auxiliary gate called the Airplane Gate, and as its name implies, was wide enough to admit airplanes, as well as equipment and personnel. The opening in the fence for this purpose was 100 feet wide. To close this opening, two gates were installed which operated laterally on rollers on a concrete base or track. When closed, these gates met in the middle and each closed an opening 50 feet wide. Each of the gates was at least 57 feet long, so that when pulled out to close the opening, there were 7 feet of each gate within the support of two posts of heavy pipe, so erected as to prevent the gates from toppling. There were four of these pipe posts, two at each edge of the opening in the fence. There is some dispute as to whether there was furnished by the manufacturer a device for preventing the gates from running out of the sheath of the posts, but viewing the evidence as we must, in the light most favorable to the Plaintiff, it appears that some such device was furnished by the manufacturer but was not installed at the time of the accident.

Each of the two gates was constructed of heavy metal and wire and weighed by various estimates, from 1,500 to 2,000 pounds.

The passage through the gates of bullozers and other such equipment of the contractors threw gravel on the concrete runway from time to time, and made the gates difficult to close and open, so that considerable force was necessary for the operation of the gates, and so that the obstructing gravel sometimes caused the rollers under the gates to leave the concrete track or runway. At the time of the accident the Air Base was still but partially completed and it does not appear from the record that any airplanes were at the Base or had used these gates.

The accident happened about 5:30 p. m. February 14, 1943. At that time, McDonald had been in the employ of the defendants since November, 1942, as a civilian guard who had nothing whatever to do with construction work. As such guard he had performed various duties and he had been stationed at the gate in question since February 1, 1943, or about 13 days. The undisputed account of how the accident occurred is this: At the close of his day's work, Taylor, another employee of the defendants, who was the operator of a bulldozer, was taking his machine to the shop for repairs, and had to pass through the gate for this purpose. When he arrived at the gate, McDonald was not available, or in any event did not open the gate, but Taylor, himself, opened it and drove his machine through it. McDonald, however, undertook to close the gate and had some difficulty in making it run on its tracks. He sought and obtained Taylor's assistance in this operation. While Taylor was undertaking to clear the track or to get the rollers of the gate back on it, McDonald pulled the gate out of the protecting sheath of the posts, it toppled over, crushing his head and fatally injuring him.

The two questions presented by the appeal are: (1) Was McDonald, at the time he met his death, a 'casual employee' as that term is defined in our Workmen's Compensation Act, Code, § 6856(b), or in the alternative, (2) Was he, at the time, an employee of and under the control of the United States Navy and not of the defendants?

The judges below have been of the unanimous opinion that McDonald was not a 'casual employee' within the meaning of the foregoing section of the Code as it has been construed in a number of our cases. For example, Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348; Gibbons v. Roller Estates, Inc., 163 Tenn. 373, 43 S.W.2d 198; Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285; United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184.

Moose the general superintendent of the defendants, whose testimony is not disputed or controverted, testified that defendants employed guards or watchmen on all their projects whether private or governmental, and that the only difference between the employment of guards on government contracts, of which these defendants had had three, was that on the latter, the guards were in uniform. As stated, McDonald had, at the time of the accident, been in the employ of the defendants since the preceding November, a period of about three months, and he had been a guard on the gate where the accident happened for about two weeks, or since February 1st. From these undisputed facts there can be but one conclusion, and as stated, it was reached by all the...