R.W. Hartwell Motor Co., Inc. v. Hickerson

• Decision Date: 05 April 1930
• Parties: R. W. HARTWELL MOTOR CO., Inc., et al. v. HICKERSON.
• Court: Tennessee Supreme Court

26 S.W.2d 153

160 Tenn. 513

R. W. HARTWELL MOTOR CO., Inc., et al. v. HICKERSON.

Supreme Court of Tennessee.

April 5, 1930

Error to Circuit Court, Davidson County; A. G. Rutherford, Judge.

Proceedings under the Workmen's Compensation Act by Mrs. H. O Hickerson for the death of her husband, opposed by the R. W Hartwell Motor Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. There was a judgment allowing compensation, and employer and insurer bring error.

Affirmed.

J. E Travis and E. J. Walsh, both of Nashville, for plaintiffs in error.

Keefe & Denney, of Nashville, for defendant in error.

MCKINNEY J.

H. O. Hickerson, an automobile mechanic, while working for the Hartwell Motor Company, died very suddenly, and this proceeding was instituted by his widow to recover compensation for herself and her two infant children. Payment is resisted upon the grounds that death did not result from accidental injury and failure to give the statutory thirty days' written notice.

The trial court found that death was the result of accident, and that, in the circumstances, petitioner was excusable for failing to give written notice.

The Hartwell Motor Company is sales agent for the Chrysler automobile in Nashville, and operates a repair shop as a part of its business, which is conducted at 1515 Broad street.

Before 10 o'clock on the morning of March 14, 1929, deceased was engaged in honing the cylinders of an automobile motor block and was using a portable electric drill for this purpose. The hood, the head of the motor, and the radiator had been removed, and the front end of the automobile was being supported by two steel jacks placed under the front axle, which caused it to be grounded. The deceased was standing up on the automobile over the motor, facing the windshield, operating the electric drill which propelled the hone in the cylinder walls.

Boyd, another mechanic, was from 12 to 15 feet away under a different car, where he remained about five minutes. He heard deceased operating the drill; then heard the drill stop. When he came from under the car he was working on, he saw deceased lying backward, his head about 6 inches off the floor, and he would have fallen to the floor but for the fact one of the stud bolts in the motor had caught in his trousers pocket. The hone and electric drill were still standing in one of the cylinders of the automobile. Boyd testified that deceased drew one breath after he reached him.

Mr. Hartwell, manager of the company, had an ambulance called and sent deceased to the hospital. He also called the company physician and sent him to the hospital to attend deceased, but the latter was dead when the physician reached the hospital. The physician only made a superficial examination of the deceased and declined to sign a death certificate stating cause of death.

Shortly after the deceased was sent to the hospital, the company had the drill tested, and the evidence shows that it was in good working condition.

The theory of petitioner is that deceased was either electrocuted or that his foot slipped and he received a fatal injury in falling.

The theory of the company is that Hickerson died from some natural cause, but offered no proof to that effect. It contends that there is no evidence that death resulted from accidental injury. It concedes that such injury may be established by circumstantial evidence, but insists that the circumstances proven are not sufficient to justify an inference of accidental injury causing death.

According to the testimony offered by the petitioner, the primary line of 2,300 volts of the Nashville Railway & Light Company and the secondary line of 110 volts, which fed the Hartwell Motor Company shop, are both on the same poles and pass through a tree a short distance west of the shop and are from 4 to 18 inches apart; that the secondary wires sag considerably; the insulation of both sets of wires is bad, and where the wires pass through the tree they are uninsulated; that it had rained on the preceding day and up to 1 a. m. on the morning of March 14th; there were leaves on this tree; both water and moist wood are good conductors; if the 2,300-volt line came in contact with the 110 volt line by means of wet leaves, twigs, limbs, or branches, excess voltage would pass through the 110-volt line; a person can be killed by a current of less than 220 volts; increased voltage would go through a man's body if he was grounded as deceased was; the situation is a very dangerous one; the board of underwriters require on a current of 550 volts a gap of 6 inches unless line is in conduit; blowing or burning out of fuses depends upon excess amperage, voltage having nothing to do with it; an excess number of volts flowing through the 110-volt feed wire into the shop would not blow or burn out fuses; that the electric drill used by deceased was an old type and unsafe; excess voltage coming over the feed line into this drill would have no effect upon the mechanism of the drill; the board of underwriters have required safety devices on all electric tools since January 1, 1929, to prevent accidents to the operators; this particular drill shocked deceased the night before he was killed, and had previously shocked other employees, knocking one off the car; after these previous shocks, this drill had been sent to an electrician for inspection, and nothing could be found wrong with its mechanism; that deceased was about twenty-five years of age, strong, healthy, and robust, a perfect specimen of manhood, appeared to be perfectly sound and never complained of any illness or disease; deceased had a burn over his left eye; the blood of deceased was dark and coagulated quickly, being hard to drain from the blood vessels, which is characteristic of persons who have been electrocuted.

The physician of the company had an opportunity to examine deceased for the purpose of ascertaining the cause of death, but did not do so.

The company had a right to demand an autopsy, which it did not see proper to exercise.

From these facts we think the trial court could have reasonably inferred that deceased was accidentally killed. The universal rule seems to be that if the conclusions of the arbiter are such as may be reasonably inferred from the proven facts, the award, upon appeal, will not be disturbed.

"The finding of the board or commission is on a footing with the verdict of a jury. It is only when the evidentiary facts are undisputed and no conflicting inference respecting the ultimate fact can be drawn therefrom that the question becomes one of law. 28 Ruling Case Law, 829.

"It is true that where only one inference can be reasonably drawn from undisputed facts a question of law arises, as in Radtke Bros. & Korsch Co. v. Rutzinski, 174 Wis. 212, 183 N.W. 168; but where from undisputed facts different reasonable inferences can be drawn a finding by the Commission has all the conclusive effect of a finding on conflicting evidence." Lewis v. Industrial Commission, 178 Wis. 449, 190 N.W. 101, 102, 25 A. L. R. 139.

"If the findings are supported by inferences which may fairly be drawn from the evidence even though the evidence be susceptible of opposing inferences, the reviewing court will not disturb the award." Hartford Acc. & I. Co. v. Industrial Acc. Com., 202 Cal. 688, 262 P. 309, 310, 58 A. L. R. 1392.

The principle is the same as that involved in negligence cases in which this court has announced repeatedly that even though the facts be undisputed, if intelligent minds might draw different conclusions as to whether, under the circumstances conceded, the defendant was negligent, the matter should be left to the jury. Roofing & Mfg. Co. v. Black, 129 Tenn. 36, 164 S.W. 1183.

The rule of reasonable inference, where the evidence was circumstantial, has been recognized by this court in numerous compensation cases; some of the later ones being the following: Tenn. Chem. Co. v. Smith, 145 Tenn. 532, 238 S.W. 97; Tennessee Eastman Corp. v. Russell, 150 Tenn. 331, 265 S.W. 540; King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3, 53 A. L. R. 1086; Shockley v. Produce & Ice Co., 158 Tenn. 148, 11 S.W.2d 900; Hartford Acc. & Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904.

In Hills v. Blair, 182 Mich. 20, 148 N.W. 243, 245, the employee of the railroad left the toolhouse to go home for his dinner. The station was 1,934 feet west of the toolhouse and his home was 225 feet beyond. As he left he was cautioned that a freight train was approaching from the east and answered that he would be all right. There was a cinder path beside the track. A short time after this train had passed the body of this employee was found lying beside the track 950 feet west of the toolhouse and near a stub switch, a lantern prong of which was bent to the west. There were no eyewitnesses to the accident. It was the theory of claimant that deceased was accidentally struck by the train as he was traveling along the track toward his home and thrown against the switch standard, which stood about 20 feet east of where his body was discovered. Respondents contended that shortly after leaving the toolhouse deceased boarded the train, which was moving slowest at that point, intending to ride as far as the depot and drop off, but that as the train increased its speed on approaching the depot, after ascertaining that there was no signal set for a stop, he either jumped or fell, striking the switch standard, and was thereby killed.

The board found for the claimant.

The Supreme Court, in disposing of the respective theories, said:

"It is contended by appellants that the facts proven here do not in reason support the inference of the board as to the manner in which

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