Parks v. E. M. Carmell Co.
| Decision Date | 23 February 1935 |
| Citation | 79 S.W.2d 285 |
| Parties | PARKS v. E. M. CARMELL CO. et al. |
| Court | Tennessee Supreme Court |
Walker & Hooker, of Nashville, for plaintiff in error.
Cornelius, McKinney & Gilbert, of Nashville, for defendants in error.
Claiming that he lost a thumb as an employee of E. M. Carmell Company, Parks filed a petition under the Workmen's Compensation Act (Code 1932, § 6851 et seq.) against the employer and its insurance carrier.
The undisputed facts are that E. M. Carmell Company was the subcontractor for installing the plumbing and steam heating in the new post office building at Nashville. T. M. Lester, who operated a trucking company in Nashville, had been employed by the company to deliver plumbing and steam heating materials and equipment, including two boilers, from the railroad yards to the post office site.
As the employees of Lester were not members of a labor union, and as the general contract, awarded to Messer & Sons, provided that only union labor could be employed on the work, a protest was made against Lester's men being allowed to do the work for which they had been employed by the company.
Kleuver, the labor representative of the structural ironworkers, insisted that the removal of the boilers from Lester's truck, and placing them in position for installation by the steam fitters, was work properly to be done by structural ironworkers. Foley, the labor representative of the steam fitters, insisted that the work was of a kind that should be done by the steam fitters.
Being unable to settle the controversy, the matter was taken for adjustment to Mr. Willing, who was the superintendent of the general contractors, Messer & Sons. Willing ruled that Lester's men, being nonunion men, could not be employed to do this work, and that structural ironworkers, and not steam fitters, were the proper men to do it. Willing further ruled that, if the superintendent of E. M. Carmell Company did not use structural ironworkers for the purpose of removing the boilers from Lester's truck and putting them in position to be installed by the steam fitters, he would charge E. M. Carmell Company with the amount that the structural ironworkers would have earned if they had been allowed to do the work.
Over the protest of Foley, Couch, the superintendent of E. M. Carmell Company, employed Kleuver, and three or four other men, one of whom was Parks, to remove the boilers from Lester's truck and place them in a position in the building where the steam fitters could connect them.
The proof shows that Parks was a structural ironworker, and had, for some weeks, been employed by Crawford Weigle Company as such. Parks and the other structural ironworkers employed to do the work were directly employed by Couch, and were paid by him at a stated price per hour. It was estimated that the time required for removing the boilers and putting them in place for the steam fitters would require about a week; as a matter of fact, it required a week and fourteen hours.
On October 30, 1933, after he had been working but several hours, Parks' thumb was crushed by being caught by a cable winding off a drum, and at a time when he and his coemployees were raising the boiler from Lester's truck which was rigged with Lester's equipment. Parks had never worked in any capacity for E. M. Carmell Company before or after October 30, 1933.
The proof shows that moving plumbing and heating equipment from depots to the place where such articles are to be installed is a part of the regular course of business of plumbing and steam heating contractors; that in some places this work is handled by ironworkers, and in others by steam fitters, and that the question of which class of men will do the work depends on the locality in which it is done and the terms of the contract; that, if union labor is strong in a certain locality, and the contract provides for the employment of union labor only, such work is done by structural ironworkers.
In most instances, however, work of the kind Parks was engaged in is done by ironworkers, as they are better riggers than are steam fitters.
It is true that E. M. Carmell Company had employed Lester to do the work, but the fact that he was barred from its performance, and the work ordered to be done by structural ironworkers, can in no manner be attributed to Parks, for he was employed by Couch, superintendent of E. M. Carmell Company, and was doing work which Couch...
To continue reading
Request your trial
-
Pope v. Safeway Stores, Inc.
...v. Drug Co. (Nebr.) 201 N.W. 645. Casual employment refers to the nature of the employment and not to the length thereof. Parks v. Carmell Co. (Tenn.) 79 S.W.2d 285. See Ins. Co. v. De Hart (Texas) 47 S.W.2d 898; Southern Underwriters v. Page (Texas) 118 S.W.2d 468; State v. District Co. (M......
-
D. M. Rose & Co. v. Snyder
...199. One so engaged is within the Act, though his employment itself is casual and of but a few hours duration. Parks v. [E. M.] Carmell Co., 168 Tenn. 385, 391, 79 S.W.2d 285, 287; see also United States Rubber Products Co. v. Cannon, 172 Tenn. 665, 113 S.W.2d 1184; McDonald v. Dunn Const. ......
-
Wade v. Aetna Cas. and Sur. Co.
...B & P Constr. Co., 703 S.W.2d 140 (Tenn.1986); Commercial Ins. Co. v. Young, 209 Tenn. 608, 354 S.W.2d 779 (1961); Parks v. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285 (1935). We likewise hold that the cost of claimant's participation in the chronic pain program is a recoverable "medical" tre......
-
McDonald v. Dunn Const. Co.
...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 Moose, the general superintendent of the defendant......