W. S. Dickey Mfg. Co. v. Moore

• Decision Date: 26 May 1961
• Citation: 12 McCanless 576,208 Tenn. 576,347 S.W.2d 493
• Parties: , 208 Tenn. 576 W. S. DICKEY MANUFACTURING COMPANY v. A. C. MOORE.
• Court: Tennessee Supreme Court

Page 493

347 S.W.2d 493

12 McCanless 576, 208 Tenn. 576

W. S. DICKEY MANUFACTURING COMPANY v. A. C. MOORE.

Supreme Court of Tennessee.

May 26, 1961.

Campbell & Campbell, Chattanooga, for plaintiff in error.

Maurice M. Weaver, Chattanooga, for defendant in error.

BURNETT, Justice.

This is a Workmen's Compensation case in which the trial judge found in favor of the petitioner; that the petitioner suffered temporary, total disability on August 25, 1959, through November 14, 1959, and that he suffered permanent disability to the body as a whole for which he awarded petitioner one hundred (100) weeks for the loss of an eye and eighty (80) weeks for injuries to the body as a whole. From this award the employer has seasonably perfected its appeal, briefs have been filed and arguments heard. We now have the matter for disposition after reading the briefs, the record, and authorities cited and others.

The petitioner, Moore, is a Negro man sixty-seven (67) years of age, and had been at the time of the injury employed by the employer at its plant for thirty-five (35) years. Petitioner's job was that of a 'hacker', that is, to load and unload tile pipes from the kilns.

On the date of the accident the petitioner brought in a load of pipes to the 'Butler building' where one Parker, a white man about half the age of petitioner, was working as a laborer. A piece of the pipe had been broken off and Parker made some remark to the petitioner to the effect that he was mighty weak, etc. As a result of these remarks the petitioner responded that Parker better take care of his own business.

After these remarks petitioner went about his work like nothing had happened and worked until he had unloaded his pipes, and then put the culls out of his load on a buggy and rode down to the western part of the yard to unload the culls. He then came back to the 'Butler building' where Parker was working. This consumed about ten or fifteen minutes of time, or something near that, and then as petitioner returned along the road between the kilns to the 'Butler building' he got off the tractor and according to him continued towards the building to tend to his duties, and as he took 'a step or two' he saw Parker and heard Parker mumble something that he did not understand. It is the petitioner's contention that Parker struck him a crushing below along the left side of his face with a shovel handle. This shovel handle had been discarded in a garbage can to the right of the door of the 'Butler building' a few days before.

Out of this state of facts the trial judge found that 'this altercation arose solely out of the employment relationship over a matter concerning working conditions and that Parker, the fellow employee, was the aggressor.' The trial judge further found that this fellow worker, Parker, 'is a person of vicious, malicious and dangerous character and unworthy of belief.'

Of course, it has been repeatedly decided by this Court without exception that the believability of witnesses who appear before the trier of facts and testify therein is for this trier of facts. When there is any material evidence to support such a finding this Court will not, and does not, interfere with the finding as to credibility of the witness and as to the facts as they appear to the trial judge.

The defense, as presented herein, is two-fold; first, that the injuries grew out of an assault in which it is claimed that petitioner, the injured workman, was the aggressor in that at the time of the assault he was going to his pocket for a knife and that Parker hit him in self-defense. This is denied and the trial judge accepted the contrary theory, that is, that the assault was not brought on by any acts of the petitioner in going for a knife, etc. There is material evidence to support this finding of the trial judge. Then, the further defense is that the injuries did not arise out of and in the course of the employment, but were due to a personal difficulty between Parker and the petitioner. Thus it is that we have the question squarely presented for our decision.

A very interesting statement is made in Stertz v. Industrial Ins. Comm., 91 Wash. 588, 158 P. 256, 258, Ann.Cas.1918B, 354 clearly showing the distinction between the Workmen's Compensation Act and the law of negligence. This statement is:

'Both had suffered under the old systems; the employers by heavy judgments * * * the worken through the old defenses or exhaustion in wasteful litigation. Both wanted peace. The master, in exchange for limited liability, was willing to pay on some claims in the future, where in the past there had been no liability at all. The servant was willing, not only to give up trial by jury, but to accept far less than he had often won in court; provided he was sure to get the small sum without having to fight for it.'

In Vol. 1 of Larson on Workmen's Compensation, Section 11.12, page 117, the author of this work makes the following very succinct and applicable statement as to a factual situation as involved in the instant case. He says:

'Similarly, it is universally agreed that if the assault grew out of an argument over the performance of the work, the possession of the tools or equipment used in the work, and the like, the assault is compensable.'

There are many authorities cited in the footnote under this statement which amply support it.

As we have often said, the meaning of the phrase 'out of and in the course of employment' is not to be determined by the rules which control in cases of negligent default at common law, for one of the purposes of the Compensation Act is to increase the right of employees to be compensated for injuries growing out of their employment. There must be some casual relation between the employment and the injury; but, if the injury is one which after the event, may be seen to have had its origin in the employment, it need not be shown that it is one that ought to have been foreseen or expected. Baum v. Industrial Commission, 288 Ill. 516, 123 N.E. 625, 6 A.L.R. 1242.

In our years of expreience in trying Workmen's Compensation cases and reading various authorities over the country on the question, we find that the courts generally, especially in recent years, have applied various facts in establishing the principle above stated. In Markell v. Daniel Green Felt Shoe Co., 221 N.Y. 493, 116 N.E. 1060, it was held that where an employee in the shoe...