Tennessee Chemical Co. v. Smith

• Decision Date: 11 March 1922
• Parties: TENNESSEE CHEMICAL CO. v. SMITH ET UX.
• Court: Tennessee Supreme Court

238 S.W. 97

145 Tenn. 532

TENNESSEE CHEMICAL CO. v. SMITH ET UX.

Supreme Court of Tennessee.

March 11, 1922

Error to Circuit Court, Davidson County; Chester K. Hart, Special Judge.

Proceeding by Robert Smith and wife under the Workmen's Compensation Act to obtain compensation for the death of their son, Robert Smith, Jr. Opposed by the Tennessee Chemical Company, the employer. There was an award of compensation, and the employer brings error. Affirmed.

Levine & Levine, of Nashville, for plaintiff in error, Tenn Chemical Co.

Thos G. Watkins and Thos. H. Malone, both of Nashville, for defendants in error Smith.

McKINNEY J.

This proceeding was instituted by Robert Smith and wife, Roxie Smith, against the plaintiff in error, Tennessee Chemical Company, for the purpose of recovering compensation for the accidental death of their son, Robert, Jr., while in its employ.

Their petition was filed in the circuit court of Davidson county and alleged that the deceased met his death by accidental injury which arose out of and in the course of his employment by the company, and alleged that they were partially dependent upon dedeased for their support prior to and at the time of his death.

The circuit judge found these issues in favor of said petitioners, and the company has appealed to this court, and has assigned 13 errors.

No question is made as to the amount adjudged as compensation provided the company is liable for any sum.

It will be unnecessary to take up each assignment of error, since they may be grouped under three or four heads, and we will dispose of the questions raised by said assignments of error. The first question raised is that the death of Robert Smith Jr., was not caused by accident arising out of and in the course of his employment by the company. This involves a brief statement of the facts.

The Tennessee Chemical Company is a corporation with its plant located near Nashville. At the time of Smith's death, and for some years prior thereto, it was engaged in the manufacture of fertilizer. At the time deceased was killed he was employed by said company, and had been for about six years.

In the manufacture of fertilizer the company used water to cool its sulphuric acid chambers, and in the course of the process it became hot. This water so heated is piped from the plant to a reservoir into which it sprays. Said reservoir is 60 feet in diameter, 12 to 14 feet in depth, and is located on the premises of the company at a distance of about 150 feet from its office building. The top of said reservoir rises from 12 to 14 inches above the level of the surrounding surface. However, about the top or coping of the reservoir dirt has been thrown or filled in so that the surface immediately surrounding the reservoir slopes abruptly to the top coping, and, circling the inside of this pool and flush with its top is a 4-inch pipe, from which, at regular intervals, smaller goose neck pipes project towards the center of the reservoir. From these smaller goose neck pipes the water heated in the process of cooling the acid chambers in the company's plant spray into the reservoir. The reservoir is filled with water to the brim at all times. This reservoir is situated in plain view of the office of the company.

The fertilizer is manufactured by the company from animal carcasses, bone meal, street sweepings, and other constituents, and the handling of the finished products results in considerable soiling, and makes bathing in hot water desirable, if not necessary. The company furnishes lockers for its employees, and upon coming to the plant they go to their lockers and exchange their street clothes for their work clothes, and when the day's work is over, after proper bathing, they change their work clothes for their street clothes. The company furnishes hot water for the white employees, but the custom was for the colored employees to take their buckets and go to said reservoir and obtain water for bathing purposes. This custom was well known to the company, and was acquiesced in by it without protest.

On the evening of September 22, 1919, at the close of the day's work, Robert Smith, Jr., went to his locker, obtained his bucket, and started to said reservoir to get hot water with which to bathe. That was the last time he was ever seen alive. His companion, who had a locker next to his, Eugene West, was with him when he started to the reservoir, but thought nothing of his failure to return promptly, as deceased frequently cleaned the laboratory of the company after regular hours. The next morning the body of deceased, with his working clothes on, together with said bucket and a small piece of pipe, was found in the bottom of said reservoir; and, without detailing the evidence, we are satisfied from the evidence that the deceased accidentally fell into said reservoir and was drowned. While there is some evidence to the effect that his neck was broken, from which it is argued that he was killed or assaulted by some other party or employee, this insistence is not supported by the weight of the evidence; and, in any event, there is ample evidence to support the finding of the circuit judge that his death was caused by accident arising out of and in the course of his employment. That his death was so caused may be shown by circumstantial evidence just as any other fact is proven. Corpus Juris Treatise on Workmen's Compensation Acts, p. 127; Flucker v. Carnegie Steel Co., 263 Pa. 113, 106 A. 192; Donlon v. Kips Bay Brewing & Malting Co., 189 A.D. 415, 179 N.Y.S. 93; Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W. 152, 13 A. L. R. 524; Manziano v. Public Service Gas Co., 92 N. J. Law, 322, 105 A. 484; Steel Sales Corporation v. Industrial Commission of Illinois et al., 293 Ill. 435, 127 N.E. 698, 14 A. L. R. 274.

It is none the less an injury by accident arising out of and in the course of employment, though it occurred to the employee while not actually engaged in the work of the master.

In Johnson Coffee Co. v. McDonald, 143 Tenn. 505, 226 S.W. 215, this court said:

"As to the first point, the cases arising under workmen's compensation laws are practically unanimous in holding that injuries received by employees while in the act of leaving, or preparing to leave, the place of employment to get lunch or refreshment, or while eating lunches on the premises, as allowed by the employer, arises out of and in the course of employment."

In the case of Terlecki v. Strauss, 85 N. J. Law, 454, 89 A. 1023, the court held that where a factory employee quit work at her machine shortly before noon, and was, in accordance with custom, combing particles of wool out of her hair preparatory to going home at a point away from her machine, when her hair was caught in other machinery and she was injured, she was entitled to compensation, the court through Judge Swayze saying:

"We have no doubt that the accident happened in the course of employment. It would be entirely too narrow a construction to limit the benefit of the statute to the time the workman is actually employed at his machine. He must have time to reach his machine and to get away from his employer's premises. In fact, it is a necessary implication of the contract of employment that the workman shall come to his work and shall leave with reasonable speed when the work is over. The preparation reasonably necessary for beginning work after the employer's premises are reached and for leaving when the work

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