American Plan Corp. v. Mecredy

On Petition To Rehear

Counsel for the employer has filed herein a courteous and dignified petition to rehear. This petition though presents absolutely nothing in addition to what was presented on the original hearing. It is the purest attempt to reargue the position that the employer took in the outset, which was decided against the employer both by the Chancellor and by this Co art. Consequently, it really does not deserve an answer other than to point out to counsel for the company wherein they are mistaken and wherein we and the position we have taken in such cases are correct.

We are courteously taken to task for making this statement: “The testimony of the manager of the company is that at the time they were riding around and had this wreck he, the manager of the company, was taking Mecredy over the territory on business for the company showing Mecredy around the different places he had to go in his business in working for the company in making collections, etc.”

Of course, this is the conclusion that we reached after reading this record. The record clearly supports this conclusion. At page 36 of Volume 2 of the record, the widow, was asked about talking to Mr. Roberts, the manager of the defendant corporation, and among other things she said: “He told me that he was trying to familiarize him with the city in order for him to be able to make him contacts and collections.” On page 81 of Volume 2 of the record among other things Mr. Roberts testified, as follows:

“Q You could have told her that, all right. Do you know whether or not you told her on that occasion that you had been out familiarizing him with the city?

“A I did.

“Q You did tell her that, that’s what you told Mrs. Mecredy?

“A I did.”

Now let ns look at what the Chancellor said [the trier of facts who saw and heard all these witnesses]. He said this in his Memorandum Opinion on page 18 of Volume 1 of the record:

“From the testimony of defendant’s manager, his statements to the widow and the testimony of S. N. Nelson, the Court is satisfied that at the time of the accident, resulting in death, decedent was performing services to better qualify himself for that part of his job which required calling on delinquents in various parts of the city. ’ ’

Obviously, regardless of the argument and belief of the defendant corporation, this is sufficient and ample evidence for the trial court, the one who sees and hears the witnesses, to find that the man at the time he was killed was on the business of the company. This being true, we cannot do anything about it. It can, of course, be argued pro and con, and it can be argued that the weight of the proof was to the contrary and that this manager stated absolutely the opposite in different parts of his testimony, but clearly under all decisions in this State in compensation matters it is up to the trier of facts to reach the conclusion as to what is the truth of the situation. When such is done, there is nothing that this Court can do about it.

Counsel cites Jellico Grocery Co. v. Hendrickson, 172 Tenn. 148, 110 S.W.2d 333, to the effect that isolated portions of testimony must be taken together and understood with what the witness said before he made these certain statements. In other words, this is nothing but an argument that the Chancellor should have believed this manager when he said they were not on the business of the company, yet the Chancellor concluded under all these facts here and seeing' and hearing these witnesses that this manager of the corporation was telling the truth when he said that Mecredy was on company business when this accident happened.

Therefore, for reasons stated in our original opinion the petition to rehear must be overruled.