U.S. Fidelity & Guar. Co. v. Barnes

• Decision Date: 05 May 1945
• Citation: 187 S.W.2d 610,182 Tenn. 400
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BARNES.
• Court: Tennessee Supreme Court

187 S.W.2d 610

182 Tenn. 400

UNITED STATES FIDELITY & GUARANTY CO. v. BARNES.

Supreme Court of Tennessee.

May 5, 1945

Error to Law Court, Henry County; Hugh L. Clarke, Judge.

Action under the Workmen's Compensation Law by Mrs. Bertha Barnes against the United States Fidelity & Guaranty Company compensation insurer, to recover compensation for the death of plaintiff's husband while employed by the city of Paris. To review a judgment awarding full compensation defendant brings error.

Affirmed.

R. H Rhodes and Charles G. Neese, both of Paris, for plaintiff in error.

Van Dyke & Dunlap, of Paris, for defendant in error.

PREWITT Justice.

This is a suit under the Workmen's Compensation Law, sections 6851 to 6901 of the Code.

The circuit judge awarded full compensation for the death of the deceased employee. The employer, City of Paris, was not made a party to the suit, and the action is against the insurer alone.

The plaintiff in error's theory of the case is that the injuries received by the deceased occurred 'in the course of' but not 'out of' his employment. This Court is materially aided by the exhaustive and able findings of fact by the circuit judge.

The suit was brought by Mrs. Bertha Barnes, widow of the deceased, for the alleged accidental death of her husband, which occurred on the night of May 28, 1944, about 8 o'clock. The deceased was employed as a night watchman by the Board of Public Utilities of the City of Paris and was killed by a fellow servant, L. C. Tucker, while both were on duty.

It appears that Charlie E. Robinson was the chief engineer for the Board of Public Utilities and W. Y. Howell was the superintendent. The plant consisted of several buildings, various machinery, and a large water tank or reservoir, and also a small house or shack for the night watchman.

On the night Barnes lost his life some colored employees of the Board of Public Utilities, who lived near by, heard shots on the premises. They found Barnes lying near his shack badly wounded from two pistol shots. He stated that Tucker had shot him and wanted the negroes to do something for him. The police were called and the officers carried Barnes to the hospital where he died a short time later. A new minutes later other negroes living near the plant came upon the scene and told the officers some one had jumped into the city water tank. The tank was drained and Tucker's body was found.

The proof discloses that a Mrs. McFadden, a married woman of the city of Paris, had been paying frequent visits to Tucker at the place where he worked. Barnes reported this to Mr. Howell, the superintendent, and also told Mr. Robinson, the chief engineer. These officials objected to this woman visiting Tucker at the plant or place of business, and instructed Barnes to keep this woman away from the premises. It seems that the chief engineer had found the woman one night on the premises and ordered her to leave. Tucker resented this and abused and threatened Robinson but later apologized to him. It also appears that Tucker entertained ill feeling toward the deceased on account of this woman. It further appears that Tucker stated to another employee on the afternoon before the night of the killing that he was going to kill Barnes. It does not appear that Barnes anticipated any trouble with Tucker on the night he was killed.

We are of the opinion tht the deceased's injuries were sustained by an accident arising out of and in the course of his employment while he was on duty and carrying out the orders of his superior, and that there was at said time and place a direct causal connection between the conditions and circumstances under which the work of the deceased as such employee was required to be performed, and his resulting injuries and death grew out of a difficulty directly arising from or related to the employment of Barnes and sustained in furtherance of the business of his employer. It does not appear that either Barnes or Tucker had any authority over the other.

In the case of Milne v. Sanders, 143 Tenn. 602, 624, 228 S.W. 702, 708, this Court quoted with approval from 'A Corpus Juris Treatise on the Workmen's Compensation Act,' page 72, [see 71 C.J. 644] as follows:

'Distinction Between Terms.--The expressions 'arising out of' and 'in the course of' the employment are not synonymous, but the words 'arising out of' are construed to refer to the origin or cause of the injury, and the words 'in the course of' to refer to the time, place, and circumstances under which it occurred. An injury which occurs in the course of the employment will ordinarily, but not necessarily, arise out of it, while an injury arising out of any employment almost necessarily occurs in the course of it.

'In determining whether an accident arose out of and in the course of the employment, each case must be decided with reference to its own attendant...