Clendening v. London Assurance Co.

336 S.W.2d 535, 206 Tenn. 601, 1960 Tenn. LEXIS 409
CourtTennessee Supreme Court
DecidedMarch 11, 1960
StatusPublished
Cited by28 cases

This text of 336 S.W.2d 535 (Clendening v. London Assurance Co.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clendening v. London Assurance Co., 336 S.W.2d 535, 206 Tenn. 601, 1960 Tenn. LEXIS 409 (Tenn. 1960).

Opinions

[605]*605Mr. Justice Felts

delivered the opinion of the Court.

This is a suit for workmen’s compensation. Plaintiff alleged that R. D. Trammel was engaged in the business of building houses and contracted with Jones, Cantrell & Jones to do the brick work; that they employed plaintiff to help lay the brick, and while doing this, the scaffold on which he was working collapsed, he fell, and sustained injuries; and that Trammel was the “principal contractor” and his insurer, the defendant, was liable, under section 15 of the Act. T.C.A. sec. 50-915.

Defendant in its answer admitted that Trammel was engaged in building houses, operating under the Work[606]*606men’s Compensation Act, and defendant was Ms insurer. It also admitted lie was building the bouse in question, but averred lie was building it as “owner,” not as general or principal contractor; that lie bad let tbe brick work to Jones, Cantrell & Jones as independent contractors; and it denied that plaintiff was his employee or that it was liable for compensation.

At the close of plaintiff’s proof, the Trial Judge, upon defendant’s motion, entered a decree adjudging that defendant was not liable; that plaintiff’s proof showed that defendant’s insured, Trammel, was building the house as owner and not as a “principal or intermediate, or subcontractor”; and that plaintiff was not an employee of Trammel but an employee of the independent contractor.

Plaintiff appealed in error and insists that the proof established, as a matter of law, that Trammel, in the course of his business of building houses, was building this house as general contractor for Walton L. Peace and wife and was, therefore, the “principal contractor” within section 15 of the Act, and that his insurer, standing in his place, is liable for compensation to plaintiff as an employee of his subcontractor.

It is true in a compensation case the Trial Judge’s finding of fact, if supported by any material evidence, is not open to review by us. Vester Gas Range & Mfg. Co. v. Leonard, 148 Tenn. 665, 672, 257 S.W. 395; Storie v. Taylor Supply Co., 190 Tenn. 149, 152, 228 S.W.2d 94; Barker v. Curtis, 199 Tenn. 413, 419, 287 S.W.2d 43.

We are charged, however, with the duty of reviewing his conclusions of law, and, in so doing, must liberally construe and apply the Act in favor of the per[607]*607sons entitled to its benefits in order to accomplish its purpose and intent. T.C.A. sec. 50-918. Maxwell v. Beck, 169 Tenn. 315, 87 S.W.2d 564; Turner v. Bluff City Lumber Co., 189 Tenn. 621, 623, 227 S.W.2d 1, 2; Giles County v. Rainey, 195 Tenn. 239, 243, 258 S.W.2d 774.

The undisputed facts appearing upon this record are that R. D. Trammel was a contractor engaged in the building business, operating within the Workmen’s Compensation Act, with defendant as his insurer. In the course of such business, he would have a lot transferred to himself and wife, and contract to build a house on it and convey it to another person. He did this in the case of nine different lots in various subdivisions in Davidson County during the period from June 1958 to February 1959.

One of these nine was the lot in question, Lot No. 367 in the plan of the Belshire Estates. On July 8, 1958, Trammel made a written contract with Walton L. Peace and wife to build a house on this lot and convey it to them for $15,150, $3,650 to be paid in cash and the balance by obtaining a GT Loan on the house in the sum of $11,500. It was understood that when this loan was authorized, the lot would be transferred to Trammel, and he would erect a house on it and convey it to Peace and wife. Among other things, this contract provided:

“The seller [Trammel and wife] further agrees as a condition to this contract to build said house according to attached plans and specifications and will be a duplicate of house built by Raymond D. Trammel on Lot No. 1 Liberty Lane with the following changes: [setting them out]”

[608]*608As stated, this contract between Trammel and Peace was dated July 8, 1958. The GT Loan was authorized August 15, the lot was transferred to Trammel and wife August 27, 1958, and shortly thereafter he began constructing the house pursuant to this contract. He contracted with Jones, Cantrell & Jones to do the brick work at so much per thousand; and they employed plaintiff to help lay the brick at a certain price per thousand.

While Trammel was building this house for Peace and wife, he was also building a number of other houses for other persons; and he contracted with Jones, Cantrell & Jones to do the brick work in these other houses; and they employed plaintiff to help do that work. Plaintiff would work on these different projects, as directed by Trammel. In this way, he had worked on ‘ ‘ seven different houses” during the period of three months prior to his injury, which occurred November 21, 1958.

During Trammel’s construction of this house for Peace and wife, Trammel made a number of changes in the plans and specifications which had been mutually agreed to by him and Peace. He would come to the building every day or so to supervise and inspect the work, and was present on the premises at the time of the accident which resulted in plaintiff’s injury. Trammel completed this house, according to his contract with Peace and wife and he and his wife conveyed it to Peace and wife by deed dated January 5, 1959.

The basis of liability under the Workmen’s Compensation Act is the employer-employee relation. Section 2 broadly defines “employer” and “employee” (T.C.A. sec. 50-902(a, b)); and we have many cases denying the injured workman compensation because he [609]*609was not an “employee” but an “independent contractor.” See Odom v. Sandford & Treadway, 156 Tenn. 202, 299 S.W. 1045, 1046; Barker v. Curtis, supra; Komarad v. Parkes, 201 Tenn. 566, 572, 300 S.W.2d 922.

Section 15 of the Act, however, here invoked, somewhat broadens the injured employee’s right to compensation. It allows him to look not only to his own employer bnt to any other contractor — any “principal, or intermediate contractor, or subcontractor” — on the project where he was at work and his injury occurred (Reynolds & Co. v. McKnight, 177 Tenn. 228, 237, 148 S.W.2d 357, 360). We quote the parts of that section here pertinent.

“A principal, or intermediate contractor, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors and engaged upon the subject-matter of the contract to the same extent as the immediate employer * * *.

“This section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management” (T.C.A., sec. 50-915).

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Bluebook (online)
336 S.W.2d 535, 206 Tenn. 601, 1960 Tenn. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clendening-v-london-assurance-co-tenn-1960.