Milne v. Sanders

• Decision Date: 03 February 1921
• Citation: 228 S.W. 702,143 Tenn. 602
• Parties: MILNE v. SANDERS ET UX.
• Court: Tennessee Supreme Court

228 S.W. 702

143 Tenn. 602

MILNE v. SANDERS ET UX.

Supreme Court of Tennessee.

February 3, 1921

Appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Proceedings under the Workmen's Compensation Act by W. J. Sanders and wife for compensation for the death of their son Robert Sanders, opposed by W. S. Milne, operating as the Milne Chair Company, employer. Judgment for claimants, and the employer appeals. Affirmed.

McKINNEY J.

This suit was instituted under the Workmen's Compensation Act chapter 123 of the Acts of 1919, to recover damages for the death of Robert Sanders, a boy 16 years of age.

In the lower court there was a judgment for the minimum sum provided by the act in a case of this kind, to wit, $5 per week for 40 weeks, and from said judgment the chair company has appealed to this court and has assigned errors.

The deceased and his brother Fred had been in the employ of the chair company 2 1/2 days at the time of the injury, although they had previously worked for said company. They were to do such work as they were called upon and directed to do by the foreman. The age of Fred does not appear in the record, but the evidence shows that he and Robert were the same size.

The accident, resulting in the injury and subsequent death of Robert, occurred about 11:45 in the morning. At the time these brothers were working in the finishing room on the third floor of the building, and were engaged in dipping chairs. These chairs were dipped in a tank into which liquid wax had been poured.

There was a room, about 30 feet from where they were working, cut off to itself by walls extending to the ceiling, and known as the "oil room." In this room were five or six barrels of varnish and liquid mineral wax. The highly combustible substances, such as naphtha, benzene, gasoline etc., were not kept in this room, but were kept in containers under the ground. This liquid wax was carried from the oil room in buckets and poured into the tank in which the chairs were dipped.

On the occasion in question the tank was empty, and the foreman directed Fred to get five or six buckets of wax and pour into the tank. At the time this order was given it appears that Robert was wiping chairs. The foreman assisted Robert in bringing the first bucket, and then left for some other part of the building. When he left Robert began assisting his brother in transferring the wax from the oil room to the tank. While Robert was in the oil room there was a combustion or explosion, resulting in a fire in the oil room, which set the clothing of Robert on fire, and he was so badly burned that he died that night.

It is insisted by the chair company that a negro boy named George Mayfield, in the employ of the chair company, struck a match and threw it in the oil room for the purpose of setting fire to Robert Sanders. And it appears that for this offense the negro boy has been convicted of murder in the criminal court of Hamilton county.

It will not be necessary to set out the first three assignments of error, as they are too general to be considered by the court.

The fourth, fifth, and sixth assignments of error raise the serious questions involved. They are as follows:

"Because the trial court erred in declining to hold that from the uncontroverted evidence in the case, the death occurring in this case arose out of and from an independent intervening felonious act of one George Mayfield to vent personal malice, spite, and vengeance, and was in no way caused by accident arising out of the employment and in the course of the employment within the scope and meaning of the Workmen's Compensation Act, chapter 123 of the Acts of 1919, upon which this suit is predicated, and that therefore no compensation should be allowed, and accordingly in declining to pronounce judgment in favor of defendant.

Because the trial court erred in declining to hold that from the uncontroverted evidence in the case the deceased, Robert Sanders, had departed from and gone out of the scope of his employment at the time of his injuries sustained, and that therefore his death did not arise out of the employment and in the course of the employment, and therefore no compensation could be allowed, and the trial court accordingly erred in declining to pronounce judgment for defendant.

Because the trial court erred in declining to hold that from the uncontroverted evidence in the case there was no causal connection between the employment of Robert Sanders deceased, and the felonious act of George Mayfield causing his death, and therefore the death did not arise out of the employment or in the course of the employment, and therefore no compensation should be allowed upon the ground that the death did not arise out of the employment or in the course of the employment, and accordingly the trial court erred in declining to pronounce judgment for defendant."

For reasons hereinafter to be stated the evidence, as it appears in the transcript, is meager and unsatisfactory, and makes it rather difficult to determine the real facts which caused the injury resulting in the death of Robert Sanders. We here copy all of the evidence bearing upon the questions raised by the assignments of error set forth above.

Fred Sanders testified as follows:

"Q. Just tell what you know about your brother Robert Sanders meeting with an accident at the Milne Chair Company were you working there first?

A. I was in there.

Q. Where were you?

A. I was out there just coming out of the room.

Q. Which room? A. Why, the room there, the oil room; I had just come out of there. We went there to get some of this wax stuff, so I went up to the room and we went in the oil room.

Q. You had just come out of the oil room?

A. Yes, sir.

Q. Where was your brother?

A. He was in there; we was going to the same place, and I was going in there.

Q. What were you doing at that time?

A. At that time we was toting that wax stuff to the tank we had run out.

Q. What for?

A. The tank where they dipped chairs.

Q. Who told you to do that?

A. Our boss.

Q. Who was your boss? What was his name?

A. Henry Kidwell.

Q. Is that what you were paid to do?

A. Yes, sir.

Q. Is that what you were employed to do?

A. Yes, we was supposed to dip chairs.

Court: Ask him what his brother was doing.

Q. What was he doing at the time he got burned?

A. Well, he was toting this wax stuff, toting it out in a bucket.

Q. What kind of wax stuff was that that he was toting?

A. It was a preparation that they had there that they used to dip chairs in.

Q. That was the kind of work that he was doing?

A. Yes, sir.

Q. What happened to him after he ran out of the room?

A. He went out through the room and he was burning, all on fire.

Q. When you and Robert went up there to work, Mr. Kidwell put you to work at the dipping tank?

A. Well, he put us to work doing something else.

Q. Well, on the day of the accident you were working at this dipping tank dipping chairs in this liquid wax?

A. Yes, sir.

Q. This liquid wax was in one corner of the room and was in vats in there, and it was a part of your business to take these pieces and dip them in this tank, up in the main room, and you were over there, you and Robert, standing there dipping these chairs in this wax?

A. Yes, sir.

Q. That is the stuff in this room in there where the fire occurred, and it was thick and heavy stuff like molasses, was it not, and it was just heavy varnish?

A. It was just wax.

Q. It was not like water?

A. No, sir.

Q. You were over there at that dipping tank and dipping these chairs in the tank?

A. Yes, sir.

Q. Now, shortly before the accident Mr. Kidwell came here where you and Robert were dipping these chairs in the tank and said to you, did he not, to go and take a bucket and bring some more of this wax out of the room there?

A. Yes, sir.

Q. He said that to you?

A. Yes, sir.

Q. He told Robert to stay there and keep dipping and told you to get the wax and bring it out there?

A. Yes, sir; and he helped me.

Q. You mean Mr. Kidwell?

A. No, sir.

Q. You mean Robert?

A. Yes, sir.

Q. Mr. Kidwell did not tell Robert to help you, but he told him to stay there, and then Robert went and helped you?

A. Yes, sir.

Q. When Robert went to help you, Mr. Kidwell was not there in the room, was he?

A. No, sir.

Q. So Mr. Kidwell did tell you to go and get the wax, and after you went and got a bucket or two of it and Robert had stayed there at his work, then he went to help you bring the buckets of wax so that you could get it quicker?

A. Yes, sir.

Q. At the time the fire occurred you were standing at the tank?

A. Yes, stirring; I had come out of the room and poured mine in there and was stirring it.

Q. You were stirring?

A. Yes, sir.

Q. Robert had gone into the room to get a bucket full of wax to bring it to the tank?

A. Yes, sir.

Q. This negro Mayfield, George, Mayfield, did he work on the same floor?

A. Yes, sir; dragging chairs.

Q. Now just before the fire did you see this negro, Mayfield, with a match in his hand while you were there pouring or stirring?

A. I saw him at the door; I never saw him with a match, and I saw him have something before the fire came out.

Q. Did you not testify before Esq. Lawerence on the trial down there, and did you not testify in the criminal court during that trial, that you saw him with a match in his hand and saw him throw it; did you not state that?

A. I saw him have something shut up in his hand.

Q. Did you not say that you saw him have a match in his hand? Did you not say that both times?

A. I saw him have something in his hand and saw him scratch it that way (indicating).

Q. It was a match, was it not?

A. He threw it up that way (indicating).

Q. You saw him throw it or draw it up on his overalls, and he scratched the match on his overalls and

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