Blevins v. Pearson Hardwood Flooring Co.
| Decision Date | 23 November 1940 |
| Citation | 144 S.W.2d 781,176 Tenn. 606 |
| Parties | BLEVINS v. PEARSON HARDWOOD FLOORING CO. |
| Court | Tennessee Supreme Court |
Error to Circuit Court, Scott County; H. B. Brown, Judge.
Proceeding under the Workmen's Compensation Act by Diance (Bud) Blevins, claimant, opposed by the Pearson Hardwood Flooring Company, employer. To review an adverse judgment, claimant brings error.
Reversed and remanded.
Hodges & Doughty and Strauss & Strauss, all of Knoxville, for plaintiff in error.
Howard H. Baker, of Huntsville, for defendant in error.
Petitioner in this compensation case suffered an accidental injury in August, 1935, arising out of his employment by the defendant Hardwood Company, which produced a hernia. The Company furnished him a truss which he used for some months, when he was tendered a curative surgical operation, which he refused. He brought his suit for compensation in July, 1936. The case was heard before the trial judge at the July term, 1937, when it was held that the petitioner was physically able to undergo an operation and that his refusal to do so was unreasonable. In the order dismissing the suit it was recited that "recovery should be denied until such time as petitioner would submit to said surgical operation to have said hernia repaired, and, consequently, the suit should be dismissed." This was followed by a formal judgment of dismissal. A motion for a new trial was overruled on July 24 1937.
On February 10, 1938, the present suit was brought in which the history of the case was set forth in the petition. A demurrer was interposed on the ground that the present suit was brought more than one year after the occurrence of the injury and was, therefore, barred by the statute of limitations of one year applicable to suits for compensation, as provided by Section 6884 of the Code; and because the present suit was not brought within thirty days after an operation had been tendered and refused; and because the petition showed that the only time the petitioner had ever agreed to an operation was subsequent to the entry of the judgment dismissing his suit at the Jury term, 1937, which was more than one year after the occurrence of the injury.
The trial judge overruled the demurrer, but permitted an appeal to this Court, which was dismissed at the September term 1938, in an opinion by Mr. Justice Cook, because premature.
Following the remand of the case the defendant Company filed an answer in which it admitted the accidental injury of petitioner and receipt of notice and set up as a defense that it had tendered to petitioner a surgical operation to repair the injury, within thirty days after the date of the injury, in compliance with Section 6875 of the Code, but that petitioner, in disregard of the requirements of this provision of the Code, refused to accept the said treatment also, the petitioner's right and remedy were barred by the statute of limitations of one year; also, the adjudication in the former action was relied on as a bar to this.
The case was heard by the trial judge on these pleadings on March 4, 1940, when the petitioner testified that, following the entry of the judgment in July, 1937, in the former suit, he was advised by his physician that he might safely have the operation, and that his willingness to do so was communicated by his attorney over the telephone to the defendant. There was other testimony as to his physical condition at that time and at the time when previously he had been tendered the operation.
The trial judge held that the only remedy reserved to the petitioner following the final judgment dismissing his suit on July 8, 1937, was to...
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