Atlas Powder Co. v. Leister

• Decision Date: 16 November 1954
• Citation: 274 S.W.2d 364,197 Tenn. 491,1 McCanless 491
• Parties: ATLAS POWDER COMPANY v. Elizabeth LEISTER. 1 McCanless 491, 197 Tenn. 491, 274 S.W.2d 364
• Court: Tennessee Supreme Court

Page 364

274 S.W.2d 364

ATLAS POWDER COMPANY v. Elizabeth LEISTER.

1 McCanless 491, 197 Tenn. 491, 274 S.W.2d 364

Supreme Court of Tennessee.

Nov. 16, 1954.

Campbell & Campbell, Chattanooga, for plaintiff in error.

Crawford Bean, Chattanooga, for defendant in error.

BURNETT, Justice.

The Company appeals from a compensation award to Mrs. Leister for temporary disability which she suffered by an accidental injury in the course of her employment by the Company. The primary argument made here is that there is no material evidence to support the finding and that the evidence preponderates against the finding, and in justification of the second of these assignments it is urged that, contrary to the practice over a period of many years, this Court should review the case de novo, because of Code Section 10639.1, Supplemental Code of 1950, which in effect says that we 'in all civil cases tried in a court of record, without the intervention of a jury, * * *' shall review the matter as is required of the Court of Appeals in Code Section 10622. This Code Section, 10622, prescribes the mode of review by the Court of Appeals of non-jury cases at law and non-jury cases in equity which were tried irregularly or not according to the forms of chancery. By this Code Section the Court of Appeals must determine whether or not in cases of the kind under consideration, the evidence preponderates against the judgment of the lower court. If the evidence does not preponderate against such judgment then it is the duty of the Court of Appeals to affirm. It necessarily follows that the appellant or the one appealing from the judgment of the lower court has the burden of proof in the Court of Appeals of establishing that the evidence does preponderate against the decree or judgment of the lower court. Thus it is here argued under the Statute, Supplemental Code Section 10639.1, above referred to that we in compensation cases must so consider these cases.

Long ago this Court, speaking through the late Mr. Justice Chambliss, in the case of Sears-Roebuck & Co. v. Finney, 169 Tenn. 547, 89 S.W.2d 749, while discussing whether or not this Court should so consider compensation cases said:

'Moreover, there runs through the Compensation Act of 1919 (chapter 123) an evident purpose to make the remedy simple, speedy, and inexpensive. To this end much discretion is vested in the trial court, and we think it consistent with this purpose that the scope of the review of the facts should be restricted on appeal, tending to discourage appeals, with their delays and expense to needy and distressed litigants. A sound reason is thus suggested why the Legislature did not extend the de novo rule so as to cover this class of cases.'

Section 6885 of the Code Supplement provides, in effect, that in cases arising under the Workmen's Compensation Law the Supreme Court may review the evidence only to the extent of ascertaining whether the fact findings of the Trial Judge are supported by any material evidence. Workmen's compensation cases, as provided by that section, must be heard by the Trial Judge without a jury and as other non-jury civil cases are heard in the Circuit Court.

Section 10639.1 first appeared in the Code Supplement enacted in 1950. It requires the Supreme Court to hear and consider de novo issues of fact in all cases tried in a Court of record without the intervention of a jury. If the Supreme Court follows the directions of Code Section 6885 it may examine the evidence in workmen's compensation cases only to the extent of ascertaining whether there is substantial evidence to support the findings of the Trial Judge, but if the Supreme Court follows the requirements of Code Section 10639.1 it must consider the evidence de novo. Obviously, there is an apparent conflict between the two code sections in so far as they apply to the practice in the Supreme Court in a workmen's compensation case. So the question is as to which section should prevail in the hearing of such a case in the Supreme Court.

Section 27.1 of the Code Supplement provides that Section 13 of the 1932 Code 'shall be applicable to this supplement to the code.' Section 13 of the 1932 Code reads as follows:

'Conflicts.--If provisions of different chapters or articles of the Code appear to contravene each other, the provisions of each chapter or article shall prevail as to all matters and questions growing out of the subject matter of that chapter or article.'

Code Section 10639.1 is carried under the chapter entitled 'Practice of the Supreme Court'. Code Section 6885 is carried under the chapter entitled 'Workmen's Compensation Law'. The subject matter with which we are here dealing is the practice to be followed in the Supreme Court in the hearing of a workmen's compensation case. Thus, our question grows out of the subject matter of that chapter under which code section 6885 is carried, rather than under the chapter dealing generally with the practice in the Supreme Court under which is carried Section 10639.1. It would seem to follow necessarily under the mandate of Section 27.1 of the Code Supplement that in the consideration of a workmen's compensation case in the Supreme Court code section 6885 must prevail over any conflicting provision of Code Section 10639.1.

In enacting Code Section 6885 the Legislature was dealing specifically with the practice to be followed by the Supreme Court in the hearing of appeals in workmen's compensation cases. That was one of the subject matters of that section. In the enactment of Section 10639.1 it was dealing generally with the practice of the Supreme Court in cases heard by the Trial Judge without the intervention of a jury. That kind of a conflict existed between two sections of the 1932 Code in Woodroof v. City of Nashville, 183 Tenn. 483, 192 S.W.2d 1013. There the Court said, 183 Tenn. at page 487, 192 S.W.2d at page 1014, 'Such being the situation, we think Sec. 13 of the code (1932) is applicable'. Section 13 of the 1932 Code is Section 27.1 of the Code Supplement. In Woodroof v. City of Nashville, supra, it was observed that the 1932 Code was 'nothing but a comprehensive act of the General Assembly of 1...