Alder v. Mid-South Beverages, Inc.

783 S.W.2d 544, 1990 Tenn. LEXIS 35
CourtCourt of Criminal Appeals of Tennessee
DecidedJanuary 16, 1990
StatusPublished
Cited by1 cases

This text of 783 S.W.2d 544 (Alder v. Mid-South Beverages, Inc.) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alder v. Mid-South Beverages, Inc., 783 S.W.2d 544, 1990 Tenn. LEXIS 35 (Tenn. Ct. App. 1990).

Opinion

OPINION

DROWOTA, Chief Justice.

In this workers’ compensation case, Plaintiff, a route salesman for Mid-South Bottling Company, appeals from the trial court’s judgment denying him benefits for a gunshot injury. The sole issue presented on this appeal is whether the trial court erred in its finding that Plaintiff’s injury did not arise out of and in the course of his employment. For the reasons that follow, we affirm the judgment of the trial court.

Plaintiff, Richard Aldgr, was a 22-year-old employee of Mid-South Bottling Company (a Pepsi-Cola distributor) in Memphis in the early part of 1986. He and a co-employee, Steve Bius, drove a company-furnished pick-up truck to three large Memphis grocery stores, where their job duties included setting up displays and keeping the stores stocked with drinks that had previously been delivered to the storeroom by large Pepsi delivery trucks. Co-employee Bius worked with Plaintiff and although Plaintiff normally drove the truck, neither man had management authority over the other.

Early on the morning of February 10, 1986, as Plaintiff and Bius drove into a Kroger supermarket parking lot to begin their work day, they saw two young men suspiciously walking near the back of the store close to several eighteen-wheel tractor-trailer delivery trucks. Plaintiff and Bius followed the two men and saw them leave in a four-door Chevrolet Impala. Plaintiff and Bius then worked the Kroger store and left for another store in a different location.

Plaintiff and co-employee Bius returned to the Kroger store to re-stock it later that same day. After working the store they ate lunch outside in the Kroger parking lot next to their pick-up truck. Plaintiff and Bius testified that there were no policies or procedures regarding the time or location for eating lunch while working for Mid-South other than the fact that they were told to stay in the immediate area while eating.

After lunch, Plaintiff and Bius were preparing to get into their pick-up truck when they were approached by two young men. One of the youths asked Bius for change for a dollar. When Bius replied he had no change, the youth pulled out a gun, held it to Bius’ head, and asked for everything Bius had. The other teenager yanked a personal beeper from Bius’ belt and ran off toward a vacant field adjoining Kroger’s parking lot, and Plaintiff ran after him in pursuit.

The first assailant, who was still standing at the truck with the gun, shot at Plaintiff, and Plaintiff ducked between two cars in order to avoid the gunfire. At that point, the assailant holding the gun shot at Bius and then fled in the same direction as his companion. Both assailants appeared to run toward the apartment complex across the vacant field, although neither was seen crossing into the complex.

Plaintiff came out from between the parked cars and rejoined co-employee Bius at the company pick-up truck. Neither Plaintiff nor Bius was injured at this time.

Plaintiff and Bius believed the assailants were the same two young men they had seen earlier that morning behind Kroger’s. Bius suggested that they get the license number of the car they had seen the teenagers in that morning. After yelling out to [546]*546someone in the parking lot to call the police, Bius and Plaintiff left in the company-pick-up to look for the assailants’ car.

Bius drove the pick-up to the apartment complex about one-fourth to one-half mile away and turned into the complex’s narrow driveway to turn around. As Bius turned into the driveway, he surprised the assailants in their Impala on their way out of the driveway. Bius’ and Plaintiff’s pick-up and the assailants’ car were blocking each other so that neither vehicle could go forward.

One of the assailants jumped out of the Impala, and Bius jumped out of the pick-up and chased the assailant until Bius heard a shot “and realized what I was doing.” The assailants’ car then backed out, and the armed assailant shot two or three more times at Bius as the Impala was backing out.

Bius returned to the pick-up truck to find Plaintiff lying down on the pavement directly in front of the truck bleeding from the head. Plaintiff had been shot above his left eyebrow. Plaintiff testified he has no memory of what happened after Bius left the truck, and only remembers waking up from a coma in the hospital approximately two months later.

Plaintiff was severely disabled as a result of the gunshot wound. His left arm was left functionless, and his walking was impaired so that he can now walk only with the use of a brace and a quadriposey cane. He lost the vision in his left eye and the ability to use the left frontal part of his brain. As a result of his brain surgery Plaintiff was left without certain thought processes, emotional feelings, and drives. He had to be taught how to swallow and eat, to move his extremities, to speak, to communicate, and to socially behave. His memory, cognition, thinking processes and behavioral processes had to be relearned.

Based upon AMA Guidelines, Plaintiff’s doctor rated him as having an 87% permanent disability to the body as a whole. It was admitted and stipulated that Plaintiff’s condition has rendered him permanently and totally disabled under the workers’ compensation laws.

After a trial, the judge found that Plaintiff had abandoned his master’s business and gone beyond the scope of his employment when he was shot, so that Plaintiff's injury did not arise out of or in the course of Plaintiff’s employment. Plaintiff appeals. The single issue presented for review is whether Plaintiff's injury arose out of and in the course of his employment. Our review is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50 — 6—225(e); Humphrey v. Witherspoon, 734 S.W.2d 315 (Tenn.1987).

The phrase “arising out of” refers to the origin of the injury, while the phrase “in the course of” refers to the time, place, and circumstances of the injury; and the injury received must not only arise out of the Plaintiff’s employment but also occur in the course of his employment. Knox v. Batson, 217 Tenn. 620, 399 S.W.2d 765, 770 (1966). Plaintiff asserts that the injury occurred in the course and scope of his employment because the assault occurred immediately after lunch, and Plaintiff was furthering and facilitating his employer’s business by eating lunch on the Kroger property. Plaintiff maintains that the holding in Hudson compels such a result.

In Hudson v. Thurston Motor Lines, Inc., 583 S.W.2d 597, 599 (Tenn.1979), the Court noted that “generally, injuries received during a lunch or dinner break and while the employee is off the premises are not compensable” under Tennessee Workers’ Compensation laws, but that “injuries that occur while an employee is further or facilitating his employer’s business are included in the course of his employment.” Id. at 599.

Hudson involved a truck driver who delivered freight for his defendant employer.

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Braden v. Sears, Roebuck and Co.
833 S.W.2d 496 (Tennessee Supreme Court, 1992)

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Bluebook (online)
783 S.W.2d 544, 1990 Tenn. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alder-v-mid-south-beverages-inc-tenncrimapp-1990.