Shubert v. Steelman

• Decision Date: 08 April 1964
• Citation: Shubert v. Steelman, 214 Tenn. 102, 377 S.W.2d 940, 18 McCanless 102 (Tenn. 1964)
• Parties: , 214 Tenn. 102 Robert SHUBERT et al. v. Essie STEELMAN.
• Court: Tennessee Supreme Court

Page 940

377 S.W.2d 940

18 McCanless 102, 214 Tenn. 102

Robert SHUBERT et al. v.Essie STEELMAN.

Supreme Court of Tennessee.

April 8, 1964.

Claude Callicott, Nashville, for defendants-plaintiffs in error.

Walter M. Haynes, Pat B. Lynch, Winchester, for petitioner-appellee.

FELTS, Justice.

This is a workmen's compensation case.The employers were engaged in the business of cutting timber and hauling sawlogs.One of their employees, Buford Steelman, was killed when a tree cut by another employee fell upon him.This suit was brought by his widow against the employers and their insurer to recover, on behalf of herself and their four children under 16 years of age, compensation and burial expenses under the Act.

Defendants admitted in their answer that Steelman was killed in their employee by a tree felled upon him by another employee, but denied that his death resulted from an accident arising out of and in the course of his employment, and that petitioner was his widow.They alleged that the death was caused by his violation of instructions, and by 'his own willful misconduct or intentional self-inflicted injury'; and that petitioner, if his widow, was voluntarily living apart from him and not dependent upon him.

A large amount of evidence was adduced on each side, and after the hearing, the Trial Judge filed a memorandum finding that the death was not due to the employee's violation of instructions or his wilful misconduct or self-inflicted injury, but resulted from an accident arising out of and in the course of the employment; that his average weekly wage was $20.00 per week; and that compensation and burial expenses should accordingly be awarded.

Before the entry of the decree, however, defendants moved the trial court to make additional findings and specifically to find whether petitioner was voluntarily living apart from her husband and, if so, whether she was dependent upon him.In response to this motion, the court found that petitioner was voluntarily living apart from her husband and that the compensation award should inure to the benefit of the four minor children only, and a judgment was entered accordingly.

Defendants made a motion for a new trial upon the grounds that there was no material evidence to support the court's finding that the death was caused by accident arising out of and in the course of the employment; that the evidence preponderated against such finding; and that there was no evidence to support the award of burial expenses in the sum of $300.00.

Likewise, petitioner moved for a new trial, asserting there was no material evidence to support the finding that she was voluntarily living apart from her husband; that the evidence preponderated against the finding that the average weekly wage was $20.00 per week; and that the Court should have found the average weekly wage of deceased employee, or one in like grade or position, was $40.00 per week.

Upon the hearing of these motions the trial court overruled all the grounds of each motion except the first ground of petitioner's motion and the third ground of defendants' motion, and accordingly granted a new trial or rehearing upon the issues as to the amount of the burial expenses and whether petitioner was voluntarily living apart from her husband.Defendant saved a wayside bill of exceptions.

On the rehearing upon these two issues, the Trial Judge found that petitioner was not voluntarily living apart from her husband and was, therefore, conclusively presumed to be dependent upon him; and that she was entitled to recover burial expenses in the sum of $350.00, and to recover, on behalf of herself and the four minor children, death benefits in the sum of $15.00 per week as provided by the Act; and the Court so decreed.

Defendants made a motion for a new trial, which was overruled, saved a bill of exceptions, perfected an appeal in the nature of a writ of error, and have assigned errors upon both bills of exceptions, insisting that there is no material evidence to support the finding that the death resulted from an accident arising out of and in the course of the employment; that the trial court erred in granting a new trial or rehearing upon the issues as to the burial expenses and whether petitioner was voluntarily living apart from her husband; and that there is no material evidence to support the finding that she was not voluntarily living apart from him.

As stated, the employers were engaged in a timber operation on Cumberland Mountain in Franklin County, Tennessee--cutting trees into sawlogs and hauling them out by trucks.They had a number of men employed in this work.They employed Steelman as 'a general laborer,''to do whatever is necessary in the timber and logging operations.'On the first day he worked with the other men 'snaking' logs to a 'skidway,' a place where logs were rolled up skids onto the trucks.On the second day he met his death.

When he reported for work that morning, he first helped in the loading of the logs on the trucks.When the logs were loaded and the trucks left, one of them got stuck on the road.Defendant Rich went to help get it out.But before doing so, he told Steelman and another employee, Miller, to go down the road and cut another 'skidway.'He did not tell them where to cut the 'skidway,' but left it to them to find and select a suitable place for it.

About the time they started to do this, another employee, Bohanan, cutting down a tree with a chain saw in the woods nearby, called to Steelman and Miller, said his saw was hung in the trunk of the tree, and asked them to bring their axes and help get it loose.They did that and then went to look for a place for a 'skidway.'In a few minutes Bohanan finished that tree, went to another tree and just as he was sawing it down, he saw Steelman in the woods within reach of the falling tree.He yelled 'timber,' Steelman threw up his hands, but the tree fell on him and killed him.

Much of the argument of learned counsel for plaintiffs in error is upon the weight of the evidence.It is true there was conflict in the evidence, the testimony of defendants' witness Miller tending to show Steelman knowingly and recklessly walked under the falling tree as if bent on suicide, while other evidence was that the place where the tree fell was a suitable place for a 'skidway,' there were a number of logs nearby, and it does not appear that Steelman knew where Bohanan was at that time, or was aware that a tree was being cut in that vicinity, until it began falling and it was too late to escape.

So we think the Trial Judge could reasonably find from all the circumstances that Steelman was there undertaking to find a place for a 'skidway'; and that the death resulted from an accident 'arising out of and in the course of employment,' within the meaning of our Workmen's Compensation Act(T.C.A. § 50-902(d)).

Here, 'in the course of' refers to time and place, and 'arising out of,' to cause or origin; and an injury by accident to an employee is 'in the course of' employment if it happened while he was doing a duty he was employed to do; and it is an injury 'arising out of' employment if caused by a hazard incident to such employment.Hendrix v....