Bon Air Coal & Iron Corporation v. Johnson

• Court: Tennessee Supreme Court
• Writing for the Court: Cook
• Citation: Bon Air Coal & Iron Corporation v. Johnson, 283 S.W. 447, 153 Tenn. 255 (Tenn. 1926)
• Decision Date: 25 May 1926
• Parties: BON AIR COAL & IRON CORPORATION v. JOHNSON.

Page 447

283 S.W. 447

BON AIR COAL & IRON CORPORATION v. JOHNSON.

Supreme Court of Tennessee.

May 25, 1926.

Appeal from Circuit Court, White County; J. R. Mitchell, Judge.

Proceeding under the Workmen's Compensation Act by Sam L. Johnson, claimant, opposed by the Bon Air Coal & Iron Corporation, employer. From a judgment of the trial court granting an award, the employer appeals. Affirmed.

Hill, Frater & Hill, of Sparta, for appellant.

Camp & Butler, of Sparta, for appellee.

COOK, J.

The employer, Bon Air Coal & Iron Corporation, appealed from the judgment of the circuit court awarding the employee, Sam L. Johnson, compensation, under chapter 123, Acts of 1919, of $12 a week for 300 weeks.

The employee, a mine worker, was injured by slate falling from the roof of the mine, which, according to his insistence, caused the fracture of the femur near the hip joint and injured the hip and back; and the combined injury to the leg, hip, and back resulted in a permanent partial disability, not specifically mentioned in the act, provided for in the last paragraph of section 28 (c) as amended by chapter 84, Acts of 1923, as follows:

"In all other cases of permanent partial disability not above enumerated, the compensation shall be fifty per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his partially disabled condition, subject to a maximum of twelve ($12) dollars per week. Compensation shall continue during disability, not, however, beyond three hundred (300) weeks."

The employer insists that the injury was to the leg, and that compensation should be for permanent partial disability in the use of the leg at $12 a week for a period not more than 175 weeks, the exact period determinable by the proportion which the extent of the injury bears to a total loss in the use of a leg.

The trial judge found that:

"Petitioner sustained what is commonly called a `broken hip, or hip joint fracture known as an intra-capsular fracture,' which is a fracture of the head of the femur within the capsular ligament that incloses the hip joint. He also sustained at the same time and in the same accident and from the same cause, injuries to the ligaments and muscles, or both, of the back, adjacent to and posterior from the hip joint. As a result of the fracture petitioner has a shortening of the leg of about one inch.

"As a result of these injuries to the ligaments and muscles of the back, petitioner suffers pain in the back extending up into the neck, and his back gives out when he tries to work.

"The injuries, both to the hip and to the back, are permanent, and have resulted in petitioner's permanent partial disability of a character not set out nor enumerated in the Workmen's Compensation Act, for which he is entitled to be compensated under the rule laid down in the last paragraph of subsection (c), § 28, c. 123, Acts of 1919, as amended."

The court also found that petitioner's earning capacity was reduced by the injury from $50 a week, his wage before the injury, to less than $20 a...