Battle Creek Coal & Coke Co. v. Martin

• Decision Date: 29 January 1927
• Citation: 290 S.W. 18,155 Tenn. 34
• Parties: BATTLE CREEK COAL & COKE CO. v. MARTIN ET AL.
• Court: Tennessee Supreme Court

290 S.W. 18

155 Tenn. 34

BATTLE CREEK COAL & COKE CO. v. MARTIN ET AL.

Supreme Court of Tennessee.

January 29, 1927

Error to Circuit Court, Marion County; John T. Raulston, Judge.

Proceeding under Workmen's Compensation Act by Bettie Martin and others against the Battle Creek Coal & Coke Company. Judgment for plaintiffs, and defendant brings error. Reversed and dismissed.

C. G Milligan, of Chattanooga, for plaintiff in error.

L. R Darr and S. P. Raulston, both of Jasper, for defendants in error.

GREEN C.J.

Proceedings under the Workmen's Compensation Act (Acts 1919, c. 123) the defendant in error recovered a judgment for the benefit of herself and children on account of the death of her husband, which occurred while he was in the employ of plaintiff in error. It is assigned for error in this court that there is no evidence to sustain the judgment below, and that the trial judge improperly excluded evidence of an autopsy held over the body of the deceased.

The deceased was a coal miner, working for the plaintiff in error, and was found dead in the latter's mine. There were no marks of violence whatever upon his body. It was the custom in this mine for all the workmen to shoot their blasts just before they quit work in the afternoon. The deceased was working in a room by himself. He fired three shots in his room. His body was found just within the neck of an adjoining room, toward the mouth of the mine. It was 40 or 45 feet from the neck of the deceased's room to the neck of the room in which his body was discovered, and this place and the place where he was blasting were separated by 40 or 45 feet of solid earth, slate, and coal. The room in which his body was found was not being worked.

It appeared to representatives of the plaintiff in error that a post mortem examination was desirable. The defendant in error, Mrs. Bettie Martin, had given birth to twin babies three days before the death of her husband and was confined to her bed. The representatives of plaintiff in error, therefore, consulted certain relatives of hers about the post mortem, and these relatives reported that they had talked to Mrs. Martin and that she was willing to have the post mortem. She afterward testified that she understood that X-ray pictures of her husband's body were to be taken and that she did not agree to an autopsy.

An autopsy upon the body was performed by two physicians, but their testimony concerning this autopsy was excluded by the trial judge on the ground that the widow did not consent to the examination of the body; that such evidence was therefore illegally obtained, and not admissible.

In our opinion this was error. The fourth paragraph of section 25 of chapter 123 of the Acts of 1919 provides:

"In all death claims where the cause of death is obscure or is disputed, any interested party may require an autopsy, the cost of which to be borne by the party demanding the same."

This provision of the statute seems clear, but it is argued that it was beyond the power of the Legislature to enact such a requirement. We do not pause to consider this argument, for the workmen's compensation statute is elective, and no workman or employer is bound to accept its provisions. The benefits and burdens of this statute arise out of contract. Western Union Telegraph Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 33 A. L. R. 330; Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048, 35 A. L. R. 1409; Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543; Poore v. Bowlin, 150 Tenn. 412, 265 S.W. 671. An employer who elects to operate under this act and accept its terms, is not in a position to challenge the validity of any of its provisions. Vester Gas Range, etc., Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395. And the same rule would apply to an employee.

The defendant in error, Mrs. Martin, is before us claiming the benefits of the act, and she must necessarily assume its burdens. In other words, she is bound by all the...