Williams v. Smith

• Citation: 222 Tenn. 284,435 S.W.2d 808,26 McCanless 284
• Parties: , 222 Tenn. 284 Edith WILLIAMS v. Elmer F. SMITH, Mark Shoe Corporation, d/b/a Craig's Red Cross Shoes.
• Decision Date: 31 December 1968
• Court: Supreme Court of Tennessee

Page 808

435 S.W.2d 808

26 McCanless 284, 222 Tenn. 284

Edith WILLIAMS v. Elmer F. SMITH, Mark Shoe Corporation, d/b/a Craig's Red Cross Shoes.

Supreme Court of Tennessee.

Dec. 31, 1968.

John H. Werner, Chattanooga, for appellants; Van Cleave, Hatfield & Werner, Chattanooga, of counsel.

J. Thomas Mann, Chattanooga, for appellees; Bishop, Thomas, Leitner, Mann & Milburn, Chattanooga, of counsel.

OPINION

HUMPHREYS, Justice.

Edith Williams sued Elmer F. Smith, an individual, and Mark Shoe Corporation, d/b/a Craig's Red Cross Shoes, in a common law action for personal injury damages. The defendants filed a plea in abatement alleging plaintiff's exclusive remedy lay under the Workmen's Compensation Act of Tennessee. The plea in abatement was sustained, and plaintiff Williams has appealed.

In her declaration plaintiff alleged that she had worked for six years as a saleslady for the defendant company at its retail shoe store in Chattanooga. On the morning of September 29, 1967, she was fired by defendant Elmer F. Smith, a fellow employee who was store manager. She was at work on the premises of the company at the time. After she was fired, the store manager went to his office where she was allegedly assaulted by the store manager. Her suit was to recover for personal injuries allegedly received during the assault.

Defendant's plea in abatement asserted that plaintiff's injuries were incurred by accident arising out of and in the course of employment and that her remedy was exclusively under the Workmen's Compensation Law, and that her common law cause of action should be abated.

The plea in abatement was sustained by the trial judge and, after plaintiff's petition to rehear was overruled, appeal was perfected to this Court.

Two basic questions are presented by the appeal: Whether or not the Workmen's Compensation Act bars a common law action where an employer corporation acting through its employee alter ego intentionally commits an assault and battery upon an employee, so as to restrict the assaulted employee's remedy exclusively to the Workmen's Compensation Act. The second question, is whether or not the Workmen's Compensation Act provides immunity to an employee who commits an intentional and malicious assault and battery upon a coemployee.

There are no Tennessee cases on all fours with this one. We have cases dealing with an employee's right of recovery under the Workmen's Compensation Act which establish the rule that, generally, where an employee is injured by a fellow servant, there is no liability under the Workmen's Compensation Act, Milne v. Sanders, 143 Tenn. 602, 228 S.W.2d 702, unless the assault is causally related to the work. That an assault is causally related to the work and arises out of employment if, after the event, there is apparent to the rational mind a causal connection between the work and the resulting injury. Whaley v. Patent Button Company, 184 Tenn. 700, 202 S.W.2d 649. In the Whaley case, where an employee was shot by a former employee after the latter had been discharged for incompetency or insubordination, it was held the assault was an accident arising out of employment, and compensable.

We have authority for the proposition that an employee who is injured by a third person at a time when he is acting in the course of his employment suffers an 'accident arising out of employment', which is compensable. Chamber of Commerce v. Turner, 158 Tenn. 323, 13 S.W.2d 318.

All of these cases treat the injuring incident as an 'accident' on the theory the incident was unexpected or unusual, or unintended from the standpoint of the employee. But none of our cases have dealt with the specific questions we have here.

Larson deals with this problem, and his conclusions are summarized as follow:

' § 68.00. Intentional injury inflicted by the employer in person on his employee may be made the subject of a common-law action for damages on the theory that, in such an action, the employer will not be heard to say that his intentional act was an 'accidental' injury and so under the exclusive provisions of the compensation act. But when the intentional injury is committed by a supervisory employee, although there are cases permitting similar common-law suit against the employer on the ground that the supervisory employee is the alter ego of the employer, the better rule holds such a suit barred against the employer.'

Larson states that the theory sustaining a common-law action against an employer for an intentional injury is that the employer will not be heard to allege that the injury was 'accidental' and hence under the exclusive provisions of the Workmen's Compensation Act, when he himself intentionally committed the act. It is also suggested that a second theory supporting the act is that the employer severs the employment relation by his act of violence. See Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233, 72 A.L.R. 108 (1930); Le Pochat v. Pendleton, 187 Misc. 296, 63 N.Y.S.2d 313 (1946); Rumbolo v. Erb, 19 N.J.Misc. 311, 20 A.2d 54 (1941); Blake v. Head, 106 L.T.Rep. (N.S.) 822; Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963).

Concerning the particular problem presented by this appeal, Larson says:

' § 68.21. Employer's personal act versus assault by agent.

When the person who intentionally injures the employee is not the employer in person but a foreman, supervisor or manager, both the legal and the moral reasons for permitting a common-law suit against the employer collapse.

The legal reason for permitting the common-law suit for direct assault by the employer, as we have seen, is that the same person cannot commit an intentional assault and then allege it was accidental. This does not apply when the assailant and the defendant are two entirely different people. Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.

It is a commonplace rule of respondeat superior that a master may, in certain circumstances, be held vicariously liable for the violent and intentional acts of his employee, even if the violence is a direct violation of the employer's orders. To impose a penalty on the employer in this situation, which may amount to many thousands of dollars, when he has done all he can do personally to provide compensation protection and to treat his employees well, is an outrage far worse than the fancied one which is supposed to be prevented by allowing the action.

The cases allowing the action proceed upon the fiction that the supervisory employee is the 'alter ego' of the employer. As has been remarked at several other points, there is no place for fictions in compensation law; this is especially true when your particular rule is built up largely on the basis of personal moral culpability in an individual, and the effect of the fiction is to assume that the shifting of technical legal liability under the arbitrary principle of respondeat superior connotes also the shifting of the moral and ethical responsibility for the wrong--a completely erroneous conclusion.'

In reaching this conclusion Stewart v. McLellan's Stores, 194 S.C. 50, 9 S.E.2d 35 (1940), and Heskett v. Fisher Laundry & Cleaners Co., Inc., 217 Ark. 350, 230 S.W.2d 28 (1950), both of which are relied on here by plaintiff Edith Williams, as well as Lavin v. Goldberg Building Material Corp., 274 App.Div. 690, 87 N.Y.S.2d 90 (1949), are criticized on...