W.C. Sharp Drug Stores v. Hansard

• Decision Date: 23 November 1940
• Parties: W. C. SHARP DRUG STORES et al. v. HANSARD.
• Court: Tennessee Supreme Court

144 S.W.2d 777

176 Tenn. 595

W. C. SHARP DRUG STORES et al. v. HANSARD.

Supreme Court of Tennessee.

November 23, 1940

Error to Circuit Court, Knox County; L. H. Carlock, Judge.

Suit under the Workmen's Compensation Act by Mrs. Myrtle Hansard, for her own use and that of her three minor daughters, against the W. C. Sharp Drug Stores and another to recover compensation for accidental death of plaintiff's son. Decree for plaintiff and for two of the daughters, and defendants appeal in error.

Decree affirmed as to plaintiff and decree rendered as to the daughters on condition of agreement of counsel, otherwise case remanded as to daughters.

Green Webb, Bass & McCampbell, of Knoxville, for plaintiffs in error.

W. P O'Neil and H. F. Jarvis, both of Knoxville, for defendant in error.

McKINNEY Justice.

This is a workman's compensation suit instituted by Mrs. Myrtle Hansard, for her own use and that of her three minor daughters, against W. C. Sharp Drug Stores, a partnership, and its liability insurer, Hartford Accident and Indemnity Company, to recover compensation for the accidental death of her twenty-year-old son, Eugene Hansard.

The principal defense relied upon is that said accidental injury and death did not arise out of and in the course of the employment.

The trial court awarded Mrs. Hansard and her two younger daughters compensation, the elder daughter having married shortly after the death of her brother, and from that award the W. C. Sharp Drug Stores has appealed.

This partnership operated three drugstores in the city of Knoxville. About the first of October, 1937, the deceased, was employed as a motorcycle messenger at Store No. 3, located on the corner of Magnolia Avenue and Central Street. His hours of service were from 7 A. M. to 9 P. M. seven days in the week, and occasionally he worked overtime. He delivered packages in the city as well as in the territory adjacent thereto, one witness testifying to a delivery he made ten miles from the store. Deceased lived at Fountain City, four or five miles from the store, with his mother and three sisters, whose ages at the time of his death were seventeen, twelve and seven years respectively. He used a motorcycle in delivering packages, in going to his home at night, and in returning to the store in the morning. The controversy narrows down to the simple fact as to whether, under his verbal contract, deceased was to provide his own transportation or whether it was to be provided by his employer. Deceased owned a motorcycle and his employer owned one, and during the six and one half months that deceased worked for the partnership he used each machine part of the time. The employer insists that deceased was to provide his own transportation and only used the partnership motorcycle when his machine was out of commission. It is the contention of Mrs. Hansard that the employer was to furnish the transportation and that deceased only used his own motorcycle when the employer's machine was disabled.

About 7:30 A. M. on April 18, 1938, as deceased was traveling south on Broadway en route to his work, an automobile traveling north on Broadway suddenly turned west on Atlantic Avenue just as deceased was approaching that cross street, so that deceased collided with said automobile and received injuries which caused his death.

The finding of the trial court, in part, is as follows:

"The Court finds as a fact that deceased was killed while riding on a motorcycle, and that it was within the course and scope of his employment and a part of his contract of employment and a part of his duty to ride said machine to said Sharp Drug Store #3 on said occasion. That deceased was earning an average weekly salary of $15.00 per week and that in addition thereto, the employer furnished the deceased with a motorcycle for his own use in said employment which he kept at his home, and when said machine was out of repair, said employer, W. C. Sharp Drug Store #3 rented from the deceased the motorcycle belonging to the deceased at a stipulated sum per week in addition to his salary of $15.00 per week."

If the employer, as a part of the contract, was to furnish deceased transportation, then under our decisions this accidental injury and death arose out of and in the course of the employment. McClain v. Kingsport Imp. Corp., 147 Tenn. 130, 245 S.W. 837; Norwood v. Tellico River Lbr. Co., 146 Tenn. 682, 244 S.W. 490, 24 A.L.R. 1227. In fact, this is conceded by counsel.

While upon this issue the evidence is close, after carefully weighing it, we have concluded that there were sufficient facts and circumstances to justify the trial court in finding that the employer was to furnish transportation for deceased. The employer had purchased a motorcycle to be used by its delivery messenger, and it was so used by John Hensley in that capacity just prior to the employment of deceased. Within a few days after deceased was employed by this partnership he and a man by the name of Luther Arp rode on the motorcycle of deceased to the home of John Hensley where they obtained possession of the partnership machine, each operating one of the motorcycles on the return trip. There is evidence that deceased used his employer's machine from that day until it broke down, which, according to Mrs. Hansard, was two or three weeks before he was killed, and six or eight weeks before that event, according to Dr. Stevens, manager of the No. 3 Store. Tom Dalton, who worked in the store, with respect to the partnership motorcycle, testified that deceased quit using it because there was something wrong with the motor, and the flywheel was stripped so that the chain would not pull it. When it could not be used any longer it was stored in the garage of the Motor Transfer Company, and deceased then began using his own machine and was operating it when he was killed.

Mrs. Hansard testified that her son's weekly wage was $15, but that when he used his own machine the Sharp Drug Stores paid him $20 per week, while Dr. Stevens says he was paid three or four dollars more. It is unreasonable to assume that the employer would pay its delivery messenger three, four or five dollars per week for the use of his machine when it owned a machine which was purchased for use by such employee.

It is true that Dr. Stevens testifies that he was to pay deceased $18 per week and that he was to use his own motorcycle, but he admits that when deceased began working at the store he used the partnership machine and gives as a reason that deceased did not own a machine at that time; while the uncontroverted testimony shows that deceased purchased his machine in July, 1937, and the acquisition of his machine had no connection whatever with his employment by W. C. Sharp Drug Stores in October, 1937. Furthermore, if he was to use his own motorcycle, why did he go to the home of John Hensley, just after his employment for the partnership machine and use it continuously until it broke down a few weeks before he was killed? There is not a line of evidence that the motorcycle of deceased was ever out of...