Byrd v. Pioneer-Jellico Coal Co.

• Decision Date: 20 November 1943
• Citation: 175 S.W.2d 542,180 Tenn. 396
• Parties: BYRD v. PIONEER-JELLICO COAL CO. et al.
• Court: Tennessee Supreme Court

175 S.W.2d 542

180 Tenn. 396

BYRD v. PIONEER-JELLICO COAL CO. et al.

Supreme Court of Tennessee.

November 20, 1943

Error to Circuit Court, Campbell County; Wm. I. Davis, Jr., Judge.

Proceeding under the Workmen's Compensation Act by J. E. Byrdclaimant, opposed by Pioneer-Jellico Coal Company and another, employers.Claimant recovered a judgment for compensation benefits and after his death Zora Byrd, as his widow and natural guardian of his children, moved for scire facias to revive the judgment.The writ was dismissed after G. T. Fielden's demurrer was sustained thereto, and Zora Byrd brings error.

Reversed and remanded for further proceedings.

Howard H. Baker, of Huntsville, and Joe M. Carden, of LaFollette for plaintiff in errorZora Byrd.

Grimm & Tapp, of Knoxville, for defendant in error.

CHAMBLISS Justice.

July 1st, 1932, Byrd recovered a judgment for compensation benefits against Pioneer Company and G. T. Fielden of $5 a week for 550 weeks, dating from his injury, on March 11th 1931.The amount due as of the date of the judgment was $340.Of this $272 was credited at the time to the defendant on an account for groceries and merchandise, and $68 paid on attorney fees.Nothing more appears to have been collected on this judgment.

In May, 1942, Zora Byrd filed her affidavit with the Clerk of the Court in this case setting out that Byrd died intestate on March 20th, 1938, leaving surviving him affiant, his widow, and eight named children, his heirs at law, and that the judgment remained wholly unsatisfied.She, as widow and natural guardian of these children, moved the court for a scire facias to revive the judgment.The scire facias issued to Knox County and was served on defendant Fielden September 9th, 1942, who interposed a demurrer to the writ, on several grounds, two of which were sustained by the Circuit Judge and the writ dismissed.Zora Byrd appeals.

The substance of the first ground of demurrer sustained by the trial judge is that liability of defendants under the judgment for weekly payments of compensation to Byrd extended only to such payments as accrued before his death, on March 20th, 1938.

We do not understand that this is here controverted.It appears to have been held that recovery can be had on a periodic award of compensation for only so much of the award as has accrued up to the death of the employee.Marshall v. South Pittsburg Lumber & Coal Co.,164 Tenn. 267, 47 S.W.2d 553, approving Bry-Block Mercantile Co. v. Carson,154 Tenn. 273, 277, 288 S.W. 726.

The substance of the second ground is that Zora Byrd, as widow and natural guardian of the children and heirs at law of Byrd, is not entitled to revive the judgment; that only an administrator may do so.This is the determinative question presented.

It must be borne in mind that (1)we are dealing with a demurrer, which admits all allegations of the pleading and is subject to the general rule that demurrers are not favored and will be overruled if, by any fair and reasonable intendment, the pleading challenged states, however inartificially, a good case.Also, that this court has said that, in these compensation cases, "broadly speaking, the procedure resembles that of a suit in equity," and "the policy of the courts in construing these statutes seems to be to get away from technical pleading,"etc. Hartwell Motor Co. v. Hickerson, 160 Tenn. 513, at page 525, 26 S.W.2d 153, at page 157.

It appears from this informal pleading that we have before the courtthe parties, and the only parties, entitled to this fund, of which they, the wife and children of the deceased for whose support the allowance was in part provided by the Compensation Act, have long been deprived.Consistently with the rules above noted, no technical question should be entertained as to the right of this widow and mother-guardian to move for this writ.Enough appears to justify the court in recognizing her right to act for and represent, for the purposes of this motion, herself and her children, of whom she is natural guardian, as the sole distributees of the deceased, with respect to this fund.For instance, it is said that the affidavit does not affirmatively assert that the children are minors.On demurrerwe may fairly assume that that they are such, in view of the assertion that the affiant-mother is...