262 F2d 586 Palm Beach Company v. Crum J

262 F.2d 586

PALM BEACH COMPANY, Appellant,
v.
Ellen CRUM and J. Edward Crum, Appellees.

No. 13507.

United States Court of Appeals Sixth Circuit.

Dec. 11, 1958.

Hodges & Doughty, Knoxville, Tenn., for appellant.

Frank H. Marsh, Jr., Knoxville, Tenn., for appellees.

Before MARTIN and MILLER, Circuit Judges, and GOURLEY, District Judge.

PER CURIAM.

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1

In this case, judgment was entered on the verdict of a jury awarding Ellen Crum $9,000 damages, against her employer (Palm Beach Company), for personal injuries, and her husband $1,000 for loss of her consortium and for expenses incurred by him in consequence of her injuries.

2

Appellee Ellen Crum was injured during working hours as the result of slipping and falling upon the concrete floor of the ladies' rest room furnished by her employer. There was substantial evidence upon which the jury could find properly that appellant was negligent in permitting the floor of its rest room to become wet and slippery and that appellee was injured as a proximate result of this condition. In response to requests for admission, appellant admitted that, on rare occasions, there was some water on the floor at a point between the sink and the drain pipe in the ladies' rest room, caused either by water spilling while the faucets over the sink were being used or from water running from the roof down the drain pipe. It was stipulated on pre-trial, moreover, that there was a slight leak in the roof and that some water had trickled down the pipe during the night before the accident to Mrs. Crum.

3

Appellant contends that appellees' action should be dismissed for the reason that Ellen Crum had brought suit in the state circuit court under the Workmen's Compensation Laws of Tennessee, T.C.A. 50-901 et seq., wherein it had been adjudged that she was not acting within the scope of her employment when she was injured and, therefore, could not recover benefits as an employee. From this, it is argued that the fact issue so determined became res adjudicata to such extent as to repel this present action.

4

We cannot accept this contention as valid. The Tennessee court made no finding of fact as to the cause of the accident but held merely that it did not arise during the course of appellee's employment so as to make her injury compensable under the Workmen's Compensation Laws of Tennessee. In the instant action, we are concerned with the common-law liability of the appellant and not with whether or not Ellen Crum was covered by Tennessee Workmen's Compensation Laws. If barred under those laws, appellee had the right to maintain an action against appellant upon the basis of its common-law liability.

5

We find no error in the charge of the United States District Judge, nor in any ruling made by him during the trial. There being substantial evidence to support the verdict of the jury; and the case not being one of res adjudicata, the judgment is affirmed.