White v. Whiteway Pharmacy, Inc.

• Decision Date: 07 September 1962
• Citation: 360 S.W.2d 12,14 McCanless 449,210 Tenn. 449
• Parties: , 210 Tenn. 449 Michael Edward WHITE and Michelle Elizabeth White by: n/f. Grace White v. WHITEWAY PHARMACY, INC. and Liberty Mutual Insurance Co.
• Court: Tennessee Supreme Court

Page 12

360 S.W.2d 12

14 McCanless 449, 210 Tenn. 449

Michael Edward WHITE and Michelle Elizabeth White by: n/f. Grace White v. WHITEWAY PHARMACY, INC. and Liberty Mutual Insurance Co.

Supreme Court of Tennessee.

Sept. 7, 1962.

William A. McTighe, Memphis, for appellants.

James R. Winchester, Winchester & Winchester, Memphis, for appellees.

WHITE, Justice.

The petitioners, the minor children and the dependents of Jean Evelyn White Pride filed their petition in the Chancery Court of Shelby County, seeking to recover benefits under the Tennessee Workmen's Compensation Act, which they claim accrued to them as the result of the death of their mother while at work for the defendant Whiteway Pharmacy, Inc. The Liberty Mutual Insurance Company is the insurance carrier for its co-defendant Whiteway Pharmacy, Inc.

After hearing all of the evidence in the case the Chancellor wrote a full and exhaustive memorandum and said in part as follows:

'Before there can be a recovery under the Workmen's Compensation Act it is necessary that the injury or death arise out of and during the course of employment of the employee. The terms 'arising out of' and 'in the course of' employment are not synonymous. An employee may suffer an injury during the course of his employment but at the same time it does not necessarily follow that the injury arose out of and in the course of his employment * * *.

'An injury is received 'in the course of' employment when it comes while the workman is doing the duty which he is employed to perform. It arises 'out of' the employment when it is apparent to the rational mind and upon consideration of all of the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by reasonable persons familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of' the employment, but it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.'

T.C.A. § 50-902(d) states:

"Injury' and 'personal injury,' shall mean any injury by accident arising out of and in the course of employment * * *.'

The Chancellor held under the facts presented in this case that the deceased suffered an accidental injury during the course of her employment but said injury did not arise out of her employment.

The facts upon which the trial court based its decision as disclosed by the record are that Jean Evelyn White Pride was the mother of the petitioners herein and was the wife of Tim Pride, both of whom had been employees of Whiteway Pharmacy. However, in December, 1958, Tim Pride was discharged from said employment. Jean Pride continued to work for said defendant and was so employed and at work on July 15, 1959, when her husband, Tim Pride, stabbed and killed her.

According to the proof the deceased and her husband had separated as a result of his relations with another woman, whose child he had allegedly fathered. He accused her of disloyalty and said that on July 14, 1959, he found her in company of another man and that on the following morning he went to her place of employment and stabbed her to death with a butcher knife. He went into the Whiteway Pharmacy on the morning of July 15, 1959, at about 8:00 o'clock and was temporarily detained by the owner of the Pharmacy. However, the telephone rang and when the owner was answering the phone he, Tim Pride, proceeded to the basement of the Pharmacy where the deceased was working to discuss her conduct about running around with another man.

The testimony of Tim Pride is:

'She (Jean Pride) came home on Tuesday night July 14th at about 2:00 or 2:30 and she saw me and she got in the car and left. I ordered a cab and I just got up and left too. The next morning I went down to the store and as I stepped in the store, Dr. Lubin...