U.S. Rubber Products Co. v. Cannon
Decision Date | 07 March 1938 |
Citation | 113 S.W.2d 1184,172 Tenn. 665 |
Parties | UNITED STATES RUBBER PRODUCTS CO. v. CANNON. |
Court | Tennessee Supreme Court |
Error to Circuit Court, Bedford County; T. J. Coleman, Judge.
Proceeding under the Workmen's Compensation Act by Walter Cannon employee, opposed by the United States Rubber Products Company, employer. To review a judgment granting an award employer brings error.
Judgement modified and, as modified, affirmed.
Ben Kingree, Jr., of Shelbyville, and Bass, Berry & Sims, of Nashville, for plaintiff in error.
J. D Murphree and L. S. Haugland, both of Shelbyville, for defendant in error.
This is a compensation case, in which the trial court found permanent and total disability and made an award of $7.50 a week for 400 weeks, and $5 a week for 150 weeks.
It is conceded that petitioner was an employee of the company and received accidental injuries on May 5, 1937, while at work for the company. The insistence on this appeal by the company is threefold: (1) That petitioner was a casual employee only; (2) that his disability is not shown by material, admissible evidence to be total and permanent; and (3) that the average weekly basis adopted of $15 is too high.
Petitioner is a young negro, about twenty-one years of age, whose occupation was that of a common laborer. The defendant company is a large manufacturer of cord fabrics for auto casings, its plant being located a few miles from Shelbyville on a branch line of railroad, over which it habitually receives raw materials and ships out finished goods in carload, or less, lots. The record shows that it commendably maintains its extensive grounds surrounding the buildings in an attractive manner with grass and shrubbery, and employs laborers whose duties include grass cutting and other incidental work; that the duties of these common laborers include the loading and unloading of freight cars on the switch tracks of the company.
Petitioner had been working for the company something less than a month when injured on May 5, 1937. He was engaged to work, along with his brother Dorris, by Dick Clements, a master mechanic, who was his "boss man," and who was at work with petitioner and his brother, directing them in unloading a load of lumber from a freight car when the accident to petitioner occurred. A heavy piece of lumber slipped and, swinging around, struck petitioner, who was standing on the car, and knocked him off. He fell some twenty feet, his head striking a large iron sewerage manhead. He was stunned by the fall and blood oozed from his ears. His collarbone was broken and he was otherwise injured. Further reference to his injuries will be hereafter made.
Considering first the defense that petitioner's employment was casual only and not, therefore, compensable, it is not questioned that petitioner was working at the time in the usual course of his trade or occupation, that of common laborer, but this is not, of course, determinative, the test under our act, Code, 6856 (b), being whether or not the workman was employed when injured "in the usual course of trade, business, profession, or occupation of the employer." The company insists that the lumber being unloaded by petitioner was for use in the construction of an addition to its plant whereby its productive capacity would be enlarged; and that this construction work was not being done in the usual course of its business of manufacturing cord fabric. Our cases are relied on: Murphy v. Gaylord, 160 Tenn. 660, 28 S.W.2d 348; Gibbons v. Roller Estates, 163 Tenn. 373, 43 S.W.2d 198; Parks v. E. M. Carmell Co., 168 Tenn. 385, 79 S.W.2d 285; Dancy v. Abraham Bros. Packing Co., 171 Tenn. 311, 102 S.W.2d 526.
Other authorities, also, are cited for the general rule that construction work is not in the usual course of an employer's business, where the employer is not a contractor, or builder: 71 C.J. 444 § 180; Holbrook v. Olympia Hotel Co., 200 Mich. 597, 166 N.W. 876; Morse v. New Amsterdam Cas. Co., D.C., 30 F.2d 974.
It is to be observed that the exclusion rule approved by these authorities has been applied in those cases only in which the workman was working under a contract of employment which directly and exclusively called for repair or construction work, as to which the employer was held to be engaged outside the usual course of his business, etc. The rule must be so limited. It is not to be extended to regular and general employees about a plant in connection with its usual business who happen to be at the time of the accident engaged, at the direction and under the supervision of the company's managers, on work of a repair or construction character.
What are the facts of the instant case with specific reference to this distinction?
Petitioner testified as follows:
Petitioner's brother Dorris, who was working with him when the accident occurred and who had been employed at the same time and had been working with him for some weeks doing the same kind of work, testified:
There is no suggestion that, when employed weeks before, the employment of these men had any relation to the unloading of this particular car, and we think the foregoing was material testimony before the trial judge that their employment was not specifically restricted to the construction work on this addition to the plant. There is no evidence that petitioner even knew when he was engaged that this particular work was contemplated. Quite evidently this common laborer--and, while not determinative, the occupation of the employee may be looked to and has evidential value as bearing on the nature of the work of the employer with reference to which he was engaged--was employed generally as a "yard hand" in contemplation that he would do whatever he might be directed to do within this general classification, including unloading of "machinery", brick, lumber, or other articles from time to time. And, supporting this construction of the general scope of his employment as a "yard hand," it appears that following this accident, when petitioner endeavored to resume his work for the company, he was assigned to the cutting and mowing of grass on the lawn, and so worked intermittently for some time. It may be said that this assignment was given him at this time in view of his partially disabled condition, but we think the fair inference is that this was regarded and treated by the foreman and petitioner as within the scope of petitioner's employment generally as a "yard hand." And it is not without significance that the record shows that another yard hand was taken from the grass work and shifted to the unloading work in this connection. This is not a case of a contractor doing repair construction work, or of a carpenter or brick mason engaged specifically to do such work. Such particular and restricted work was evidently not within the contemplation of the parties, either petitioner or the employer.
It may be remarked, in this connection, that in principle the reasoning of the rule in compensation cases excluding independent contractors has, by analogy, a degree of application. The contract of employment of carpenters and other builders in construction work outside the usual course of the employer's business ordinarily extends to the results only, and not to the oversight and direction of details of performance, and, therefore, fastens no liability on the employer for injuries incurred by the workman. The employer, not being in position to supervise or control the employee in these details, is relieved of responsibility for his misfortune. For illustration, the employer in Dancy v. Abraham Bros. Packing Co., supra, had no control whatever over just how this carpenter cut and handled the sheet of tin that hit his eye. Here, on the other hand, the company's foreman or "boss" stood by and explicitly directed the handling of the heavy timber that injured petitioner.
The trial judge thus states his findings on this phase of the case:
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