Davis v. Liberty Mutual Insurance

379 S.W.2d 777, 214 Tenn. 287, 18 McCanless 287, 1964 Tenn. LEXIS 476
CourtTennessee Supreme Court
DecidedJune 4, 1964
StatusPublished
Cited by1 cases

This text of 379 S.W.2d 777 (Davis v. Liberty Mutual Insurance) 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
Davis v. Liberty Mutual Insurance, 379 S.W.2d 777, 214 Tenn. 287, 18 McCanless 287, 1964 Tenn. LEXIS 476 (Tenn. 1964).

Opinion

Mr. Justice Holmes

delivered the opinion of the Court.

The parties will be referred to according to their status in the Trial Court. This is a Workmen’s Compensation case in which there was a judgment for the defendant in the Trial Court. After his motion for a new trial was overruled, the petitioner has duly perfected his appeal and has assigned errors.

The petition for compensation alleges, that the petitioner was employed by Kel-San Products Co., Chattanooga, Tennessee, as a salesman selling janitors’ supplies and floor materials, that the defendant is the insurance carrier of the Kel-San Products Co., under the Workmen’s Compensation Act, that on November 16, 1962, at ap[289]*289proximately 8:00 P.M., while the petitioner was on duty and acting in the course of his employment on the premises of a customer, he fell, breaking the hones in his left leg, causing him serious and permanent injuries. It is averred that this accident arose out of and in the course of his employment hy his employer.

The defendant, in its answer, admits that the parties are operating under the Tennessee Workmen’s Compensation Act and admits that the petitioner sustained an accidental injury at the time alleged. The answer denies that the petitioner was acting in the course of his employment and denies that the accident or injury arose out of petitioner’s employment. It is further stated in the answer that at the time petitioner fractured his leg he was playing a game of basketball in the gymnasium on the premises of the Salvation Army in Chattanooga and that such activity upon his part was in no way connected with or related to the petitioner’s employment by Kel-San Products Co., that the petitioner did go upon the premises of the Salvation Army on a mission for his employer “but after arriving in the gymnasium he found that he could not perform the mission for his employer which he had intended, so that he stored his equipment and agreed to play some basketball with some of the personnel of the Salvation Army.”

On the trial, petitioner testified that he had sold the Salvation Army some of his employer’s products and that on the evening of November 16, 1962 he went to the Salvation Army Hall for the purpose of showing them how to use the material he had sold so it would adhere to the floor. He had two floor machines with him and attached steel wool under the scrubbing brushes on these ma[290]*290chines to show the men at the Salvation Army how to “edge the surface of the sealer, the old sealer that is on the floor”. The process that petitioner was attempting’ to demonstrate did not work and, after about twenty minutes of trying, petitioner determined he would have to use other equipment to edge the old sealer on the floor. He and the' men at the Salvation Army then stored the equipment petitioner had brought with him in the office of the Athletic Director. Thereafter, one of the boys from the Salvation Army who had come to help with the floor edging operation suggested they play a game of basketball. Petitioner testified, “It was after I had decided in my own mind, and of course, they had decided too, that we could no longer do any more physical work on the floor that night”, that the subject of playing basketball came up. Petitioner denied that he was playing basketball when injured. "When asked “But, were you involved in basketball?”, he answered, “No.” He did state he intended to play basketball later. Again, when asked, “Were you playing basketball at the time of the injury?” he answered, “At the time of the injury I was not playing-basketball.” When asked, “What were you doing immediately before you fell?”, the petitioner responded, “I was examining a corrugated area of the floor, a section that I was worried about due to moisture underneath the floor. It had corrugated just like your fingers, and I realized I was going to have to use a rough wire pad made by Minnesota Mining on there, and I was wondering just how good a job it was going to do, wondering if it would flip out from under the machine, or whether to do it by hand.”

Witnesses for the defendant testified that the petitioner broke Ms leg wMle the basketball game was in active [291]*291progress. Captain Arrowwood of the Salvation Army testified lie had arranged for members of the “Men’s Club” of the Salvation Army to be there that evening so that they could be shown by petitioner how to prepare the floor, that the equipment which petitioner brought would not do the job and petitioner stated he would have to get other equipment which he did not have in stock, and the machines and equipment were put away and stored, that thereafter the two teams to play basketball were chosen and the basketball game was in progress at the time petitioner sustained his injury.

One of the basketball players testified that he was standing just a few feet from petitioner when one team was passing the ball from the west end of the basketball court toward the east end. A member of the defending team intercepted the ball as it was being passed and was advancing the ball toward the west goal; that, when this happened, the petitioner started running down the court toward the west goal when he stumbled on his own feet and fell. This witness testified petitioner took one or two steps before he tripped and injured himself.

Petitioner was taken to the hospital immediately following his injury. He admitted telling the doctor and the receiving nurse who took his history that he injured himself playing basketball.

The Trial Judge found that the injury was received while playing basketball, that there was no causal connection between the employment and engaging in the sport of playing basketball and that the injury did not arise out of and in the course of petitioner’s employment.

The question presented by this appeal is whether or not there is material evidence in the record to support [292]*292this finding by the Trial Judge. In the Trial Court, as shown by petitioner’s testimony, it was his contention that he was not engaged in playing basketball, but was examining the customer’s floor when, in some manner, he fell and sustained his injury. In this Court it is contended by the petitioner that, even though he was engaged in playing basketball, he was so doing in furtherance of good customer relations and, therefore, was attempting to promote sales of his employer’s product to the Salvation Army.

In Scott v. Shinn, 171 Tenn. 478, 105 S.W.2d 103, the following test as to when an injury by accident arises out of and in the course of employment was approved by the Court:

“It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all 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 a reasonable person 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anderson v. Dean Truck Line, Inc.
682 S.W.2d 900 (Tennessee Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
379 S.W.2d 777, 214 Tenn. 287, 18 McCanless 287, 1964 Tenn. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-liberty-mutual-insurance-tenn-1964.