dissenting.
I respectfully dissent. The sole issue on this appeal is whether Raymond Manners, Sam Gibson and James L. Roberts had formed a partnership on or before April 11, 1986, the date of Mr. Roberts’ death. The parties stipulated that Mr. Roberts died from a heart attack while aiding in the installation of an ice machine with Raymond Manners and that said act of pushing the ice machine aggravated a pre-existing heart condition suffered by Mr. Roberts, causing his death. Mr. Roberts was survived by his wife of 18 years and two sons *797ages 12 and 4 at the time of his death. He had been an employee of Lebanon Appliance Service Company (hereinafter Lebanon Appliance) for approximately 18 years. The trial court determined that Mr. Roberts was an “employee” of Lebanon Appliance on the date of his death and awarded death benefits to his widow and dependents in the amount of $67,200. Lebanon Appliance takes no position on the merits of this appeal. Appellant Aetna Casualty & Surety Company, the workers’ compensation insurance carrier for Lebanon Appliance, was permitted to intervene below and they have appealed the trial court’s award of workers’ compensation benefits. The majority opinion reversed the decision of the trial court and dismissed Plaintiff’s suit, finding that Mr. Roberts was a “partner” of Lebanon Appliance and as such was not an “employee” under the Workers’ Compensation Law.
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. T.C.A. § 50-6-225(e). “This standard of review differs from that previously provided and requires this Court to weigh in more depth factual findings and conclusions of trial judges in workers’ compensation cases. Where the trial judge has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, on review considerable deference must still be accorded to those circumstances.” Humphrey v. Witherspoon, 734 S.W.2d 315 (Tenn.1987). Four witnesses testified at trial: Plaintiff Barbara Ann Roberts; Raymond Manners and Sam Gibson, the owners of Lebanon Appliance; and Edward Roberts, the brother of the deceased. After reviewing this record, I cannot agree with the majority opinion that the preponderance of the evidence does not support the findings of the trial court.
The majority opinion points out that “Sam Gibson considered Roberts to be a partner” and Raymond Manners “did not consider Roberts as a partner and did not treat him as such.” It is interesting to note that Mr. Gibson handled the business end of the partnership — the “up-front” operations, and Mr. Manners handled the operational end of the partnership — he had a day-to-day relationship with Mr. Roberts. Mr. Manners and Mr. Roberts were very close, they talked daily and generally worked together. Mr. Roberts said to Mr. Manners a week before his death: “I don’t know right now what I’m going to do.” Mr. Manners was going on a trip to Hawaii and Mr. Roberts told him the day of his death: “let’s don’t do anything, wait till you get back and I’ll try to make up my mind whether I want to go through with this [the partnership] or not.” Edward Roberts, brother of James Roberts, testified that his brother told him about a week before his death that he did not think he would go through with purchasing a partnership interest.
As the majority opinion states, “Manners testified that Mr. Roberts had expressed reservations about the purchase of a partnership interest.” The partners talked about selling Mr. Roberts a part of the business in 1985. The discussions continued into 1986. The terms of the agreement appeared to be that the bookkeeper for the Company would determine the value of the business and Mr. Roberts would pay the current partners ten percent of that value for a ten percent interest. The bookkeeper determined that the business was worth $120,000. The parties discussed the fact that the partners each had $100,000 of life insurance paid by the partnership and the partnership would purchase a life insurance policy in the amount of $20,000 on Mr. Roberts’ life. Mr. Roberts was to be placed on the signature card for the bank account and would be a part of the decision making process for the partnership. Mr. Roberts would receive ten percent of the profits of the business.
On January 24, 1986, the method of compensation changed for Mr. Roberts from an hourly rate to a weekly draw. Mr. Roberts borrowed $12,000 and paid it into the bank account of the partnership on February 18, 1986, but no distribution to the partners was ever made. Mr. Roberts’ duties and supervision had not changed in 1986; he *798was still a service man being supervised by Mr. Manners. He had not been brought into the decision making process of the business and was not authorized to sign checks for the Company. No life insurance policy was purchased on his life. The record reveals that the partnership had filed partnership tax returns for the years 1986 and 1987 and did not list Mr. Roberts, his estate or his widow as a partner in the partnership and Mr. Manners and Mr. Gibson divided all profits equally between themselves without any distribution or accounting to Mr. Roberts’ family or estate.
I am of the opinion that when Mr. Roberts died the partnership question was still unresolved and was still being discussed. There was no written partnership agreement and certainly no meeting of the minds between the parties who were contemplating the formation of a new partnership. I would affirm the trial court’s finding that Mr. Roberts was an employee on the date of his death, thereby entitling his widow and dependents to workers’ compensation benefits.