200 Tenn. 344 | Tenn. | 1956
Lead Opinion
delivered the opinion of the Court.
This is a Workmen’s Compensation case in which the Circuit Judge rendered judgment in favor of Hannah Southerland, the petitioner as the surviving dependant of her son Albert S. Southerland, who died as a result of an accident occurring on December 13, 1951, while he was in the employ of the plaintiff in error.
The six assignments of error raise only two questions, one, that the accident did not arise out of and in the course of employment and was therefore not a compensable accident, and two, that the petitioner was not a compensable, partial dependant.
The deceased and his co-workers went to work at 7:00 o ’clock on this morning. The weather was quite cold and before going into the trench the men had warmed themselves around a central fire located away from the ditch. The deceased, before entering the trench, had obtained one of the 2*4 gallon concrete buckets on the premises and placed therein some cotton waste saturated with diesel oil which he took into the trench with him and lighted for the purpose particularly of keeping his hands warm down in the trench where there seems to have been some ice. After he and the others had been in the ditch about 35 minutes it was noticed that this bucket was sitting too close to one of the batter boards and that it might catch the same on fire. Deceased then took' his shovel and undertook to put the shovel through the handle of the bucket and move the same, but in doing so the bucket was overturned and some of the burning oil splattered onto his clothing and as a result of these burns he later died.
It is the insistence of the construction company that the deceased had no right to use the concrete bucket for
The record however presents simply a case of conflicting evidence where the trial judge believed the witnesses, who testified in behalf of the petitioner. All counsel in the case are familiar with the rule that if there is material evidence to support the finding of the trial judge, this Court has no power to disturb his findings.
A fellow worker, Elmore Richmond, testified that he was on the job that day and working in the trench right behind the deceased. That it was customary for the men to have a fire on cold mornings and that nobody had said anything about their having a fire at anytime. That the deceased had used this bucket on the day before the accident and on other previous occasions and that nobody had objected to it or cautioned him against it, although the foreman had seen the deceased and other workers use these buckets in that manner.
It is insisted by the plaintiffs in error that this witness was impeached and that his testimony contradicted itself so that he cannot be believed. This arises out of the fact that two years after the accident this witness signed a statement which among other things included the following statement:
“We had built the fires in buckets with fuel oil before but they were not furnished for that purpose. It was a quick way to build a fire and warm, we could*349 smother it out and move on without the foreman or anyone knowing about it. The foreman had not consented for us to do this.”
This witness testified that he did not say anything about smothering out the fire, meaning of course to hide it from the foreman, but that the rest of the statement was all right. With this eliminated we do not think that this statement is necessarily inconsistent with his testimony at the trial and we think this was a matter going to his credibility which was determined by the trial judge.
It is significant also that Mr. Charles B. Volz, a member of the firm, testified that he knew of the custom of workmen to build a fire adjacent to the ditch, although not in the ditch, and he admits that he would have had no objection to their using diesel fuel for the purpose of starting a wood fire, but that it was not agreeable to him for them to use the diesel oil as the fuel for the fire. It will be noted also at the bottom of page 83 of the record that when the foreman Mr. Bishop was asked: ‘ ‘ Did you have any knowledge of Albert Southerland, this man, getting diesel oil for the fire in the bucket”, he answered “I was about 200 feet anyway up the line on that day, on my offset for the line, when I heard the racket the boys down in the ditch were trying to bring him out.” Thus this witness’ answer was not responsive at all to the question.
It must therefore be concluded that there was material evidence to support the finding of the trial judge on the first question. There is also ample material evidence on the second question to show that the petitioner was a partial dependant of her son.
We think it is only fair to hold that this accident arose out of and in the course of this man’s employment and for the reasons above stated we affirm the judgment of the trial court.
Rehearing
On Petition to Rehear
The petition to rehear embraces three points: (1) That the original opinion failed to show why the two cases cited by plaintiff in error are not controlling, which cases are: Shuck v. Carney, 22 Tenn. App. 125, 118 S.W.2d 896, and Kelly v. Louisiana Oil Refining Co., 167 Tenn. 101, 66 S.W.2d 997. (2) That the question whether or not the accident arose out of and within the course of the employment, is a question of law and not a question of fact. (3) That it is certainly unknown and unheard of for the employee to put a shovel through the handle of a bucket with burning diesel oil in it and to move the bucket' across the ditch.
Then in Tapp v. Tapp, 192 Tenn. 1, 236 S.W.2d 997, it is said that the burden rests upon the employee to show a causal connection between his injury and his employment, but that by causal connection is meant — not proximate cause as used in the law of negligence, but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee of doing the work. Again — in Whaley v. Patent Button Co., 184 Tenn. 700, 202 S.W.2d 649, it is said that it is sufficient, if after the event there is apparent to the rational mind, a causal connection between the conditions under which the work is required to be performed and the resulting injury. The only way he can show these two things is by offering evidence tending to induce these two conclusions. If there be any conflict in the evidence
Reference to the original opinion will readily disclose that the employee in this case has brought himself within the above requirements. He was at his post of duty doing the very work that he had contracted to do and the effort to keep his hands warm by means of the fire in the bucket down in the trench was brought about by the conditions of cold and dampness under which he was working and it would seem that keeping his hands reasonably warm would tend to further the work of his employer.
With reference to the third proposition — -we refer first — to what was said under proposition No. 1 as to what is the proper test in Compensation cases, and secondly, it seems the most natural thing conceivable for this employee to have used his shovel for the purpose of removing a bucket filled with fire in order to prevent from burning the batter boards because, so far as the proof shows, the shovel was the only instrument he had in the ditch with him by means of which he could move the bucket.
The only other question raised in the petition was disposed of fully in the original opinion. We, therefore, overrule the petition to rehear.