Roberts v. Lebanon Appliance Service Co.

• Decision Date: 06 November 1989
• Parties: Barbara Ann ROBERTS, Plaintiff-Appellee, v. LEBANON APPLIANCE SERVICE CO., et al., Defendants-Appellants. 779 S.W.2d 793
• Court: Tennessee Supreme Court

Page 793

779 S.W.2d 793

Barbara Ann ROBERTS, Plaintiff-Appellee, v. LEBANON APPLIANCE SERVICE CO., et al.,

Defendants-Appellants.

779 S.W.2d 793

Supreme Court of Tennessee,

at Nashville.

Nov. 6, 1989.

Tracy Shaw, Nashville, for defendants-appellants.

Robert Snow Nix, Lebanon, for plaintiff-appellee.

OPINION

FONES, Justice.

This is a Worker's Compensation case wherein plaintiff, widow of James L. Roberts, brought suit against his employer Lebanon Appliance Service Company for compensation benefits. Aetna Casualty and Surety Co., the workers' compensation insurance carrier for said employer was permitted to intervene as a party defendant. Aetna answered the complaint denying liability to plaintiff, asserting that, (1) the decedent, James L. Roberts, was an owner or partner of Lebanon Appliance Service Co. at the time of his death, and as such was not an "employee" under workers' compensation law; and (2) his death did not arise out of and in the course and scope of decedent's employment.

At trial Lebanon Appliance Company did not take a position as to whether Roberts was or was not a partner at the time of his death, but asked the court to interpret the legal significance of the occurrence as it took place.

The trial court heard testimony on the limited issue of whether or not the deceased was an employee on the date of his death, and reserved judgment in order to permit plaintiff to submit medical proof on the issue of causation. Subsequently, the parties stipulated that James L. Roberts died 11 April 1986 from a heart attack while aiding in the installation of an ice machine with Raymond Manners, a partner of said company, and that the act of pushing the ice machine aggravated a pre-existing heart condition suffered by Mr. Roberts, causing his death.

The trial court held that decedent was an employee thereby entitling his widow and dependents to workers' compensation benefits. Upon our de novo review of the findings of fact of the trial judge accompanied by a presumption of correctness, we find that the preponderance of the evidence is otherwise. See T.C.A. Sec. 50-6-225(e).

James L. Roberts had been employed by Lebanon Appliance Service Company, installing and repairing appliances for approximately 17 to 18 years prior to his death. In late 1985 and continuing into 1986 the owners of the company, Sam Gibson and Raymond Manners, began discussions with Mr. Roberts concerning an offer made to Roberts to purchase a 10 percent ownership interest in the partnership/business. The only issue before this Court is whether Roberts, at time of injury and death, was a member of the partnership and not an employee of the partnership within the purview of Act.

T.C.A. Sec. 50-6-102(a)(2)(B) provides:

(B) The term "employee" also includes a sole proprietor or a partner who devotes full time to the proprietorship or partnership and elects to be included in the definition of employee by filing written notice thereof with the division of workers' compensation at least thirty (30) days before the occurrence of any injury or death, and may at any time withdraw the acceptance by giving notice of the withdrawal to the division of workers' compensation.

Sam Gibson considered Roberts to be a partner. Gibson primarily took care of the business or so-called "up-front" operations in the partnership.

The agreed price of Roberts' 10 percent share of the partnership was calculated in the amount of $12,000. Mr. Gibson testified that Roberts wrote a check payable to Lebanon Appliance Company in the amount of $12,000 dated 18 February 1986. In the bottom left-hand corner of that check was written "for 10% business." Gibson considered Roberts a partner; the $12,000 check was deposited into the account of Lebanon Appliance Service Company.

Gibson testified that after the agreement was reached he called up an insurance agent to tell them "we've got a new partner, what do we do" and the agent sent some papers to Mr. Gibson for Mr. Roberts to fill out indicating whether he wanted to be covered under the Worker's Compensation Act since he was a partner. Mr. Gibson gave the papers to Roberts, but he stated that he did not want coverage.

The evidence at trial revealed that the deceased was paid for his work at an hourly rate until 24 January 1986, at which time his method of compensation was changed to a weekly draw of $250, which was the same amount of weekly draw as Manners and Gibson. The $250 payment to Roberts and the two partners did not include any deductions such as those paid to regular employees; social security and other federal tax deductions. The amount was increased for each of three men to $275 on 31 January 1986. Profits of the company were divided at year end.

In addition, Mrs. Barbara Ann Roberts testified that her husband had decided that if he could borrow the $12,000, he would purchase 10 percent interest in the business and become a partner. She and her husband executed a note to secure a $12,000 loan at Watertown Bank for the sole purpose of purchasing a partnership interest. Mrs. Roberts testified she had considered her husband a partner until she discovered after his death that a contract had not been signed. Mrs. Roberts stated upon cross-examination:

Q. As far as you know, your husband never changed his mind regarding his purchase of the partnership interest, is that correct?

A. As far as I know.

Q. Your husband never indicated to you that he was going to back out or change his mind insofar as his express desire to remain a partner, is that correct?

A. That's correct.

However, upon redirect examination she testified that she did not know "whether there was a partnership agreement or not."

Mr. Raymond Manners testified that Mr. Roberts had expressed reservations about the purchase of a partnership interest and related to him on the morning of his death "let's don't do anything, wait until you get back and I'll try to make up my mind whether I want to go through with this or not." Mr. Manners basically ran the field operations of the company and had more of a day-to-day relationship with Mr. Roberts. Further, he testified that he did not consider Roberts as a partner and did not treat him as such.

Edward Roberts, the decedent's brother, stated that he had a conversation with him about a week or two before his death and he told him that he "didn't know if he wanted to go through with this [purchasing 10% interest] or not."

The joint tax return of Mrs. Roberts and her deceased husband for calendar year 1986 shows the gross sum of $4,025, net $3,308 as received from a business. Under the facts in this record the only possible source of that income was the partnership entity Lebanon Appliance Service, Co., and since it was not wages it was obviously paid to him as his draw as a partner. That tax return also shows that James L. Roberts paid social security self-employment tax on the net sum $3,308. That payment also confirms that he was receiving payment as a partner, not an employee.

After hearing all the proof the trial judge stated from the bench:

So, the court is of the opinion that you've got one partner that felt like he was and one didn't. And if these two main partners cannot agree whether or not he was a partner, you've got to have all three people to agree. They didn't agree.

So, the court is going to find, in fact, that he was not a partner as a matter of law.

In the trial judge's memorandum and order of judgment he provides: "Raymond Manners did not consider Roberts to be a 'partner' at the time of his death, and that therefore Roberts was an 'employee' on April 11, 1986."

T.C.A. Sec. 61-1-105 of the Tennessee Uniform Partnership Act defines a partnership as an association of two or more persons to carry on as co-owners of a business for profit. In determining whether Roberts was a partner no one fact or circumstance is the conclusive test, each case must be decided upon consideration of the totality of all relevant facts. In Wyatt v. Brown, 39 Tenn.App. 28, 281 S.W.2d 64 (1955) the court stated:

The controlling intention is the legal intention deductible from the acts of the parties. It is not essential that the parties actually intend to become partners. The existence of a partnership is not a question of the parties' undisclosed intention or even of the words they use; nor is it essential that the parties have knowledge of the legal effect of their acts. It is the intent to do the things which constitute a partnership that usually determines whether or not the...