Ezell v. Tipton

• Court: Tennessee Supreme Court
• Writing for the Court: HALL, J.
• Citation: Ezell v. Tipton, 264 S.W. 355, 150 Tenn. 300 (Tenn. 1924)
• Decision Date: 18 July 1924
• Parties: EZELL v. TIPTON.

264 S.W. 355

150 Tenn. 300

EZELL v. TIPTON.

Supreme Court of Tennessee.

July 18, 1924

Appeal from Circuit Court, Lake County; Robt. A. Elkins, Judge.

Petition by L. G. Ezell, for compensation under Workmen's Compensation Act, against Hale C. Tipton. From the judgment rendered, both parties appeal. Affirmed.

Hall J., dissenting in part.

Burnett & Donaldson, of Tiptonville, for plaintiff.

C. B Tipton, of Tiptonville, and Draper & Rice, of Dyersburg, for defendant.

HALL J.

L. G Ezell filed his petition in the circuit court of Lake county under chapter 123 of the Acts of 1919, as amended by chapter 84 of the acts of 1923, known as the Workmen's Compensation Act, seeking to recover compensation of the defendant, Hale C. Tipton, for an injury sustained by him while in the employ of defendant and working in his cotton gin at Tiptonville, Tenn.

Petitioner was employed by defendant in the capacity of a ginner, and on September 27, 1923, while cleaning lint cotton from under the gin saws, which were in rapid motion, with a short stick, his hand was caught in the rapidly revolving saws and his forearm and hand were so badly mangled and lacerated that it was necessary to amputate his arm about two inches below the elbow.

Petitioner's petition alleged that defendant had in his employ, at the time of said accident, more than five persons regularly employed and that petitioner, under the provisions of the Workmen's Compensation Act, as amended by chapter 84 of the Acts of 1923, was entitled to compensation for 200 weeks (less 12 weeks), at the rate of $12 per week; petitioner's regular weekly wage being $24 per week at the time of his injury.

It is conceded by defendant that the injury to petitioner arose out of and in the course of his employment, but in his answer sets up the following defenses to petitioner's right to recover compensation:

(1) That the Workmen's Compensation Act, as amended, did not apply to defendant's gin operation before and at the time of petitioner's injury; that the amendatory act failed to amend the original act so as to make its provisions apply to an employer working less than ten persons.

(2) That petitioner was not entitled to recover of defendant compensation for his injury because he had failed to give him notice of the injury as required by section 22 of the original act.

(3) That petitioner was not entitled to recover because his injury was the result of his own willful misconduct in failing to use a certain safety appliance in the operation of the gin, and in failing to use a long stick, which was kept for the purpose of enabling the operator of the gin to clean lint cotton from about the saws with absolute safety; that petitioner was also guilty of willful misconduct in refusing to obey the instructions of defendant, or his foreman in charge of the gin, not to wear long, heavy buckskin gloves while operating the gin, and that these several willful acts were the direct and proximate cause of petitioner's injury.

The case came on to be heard before the court at the March term, 1924, when the court decreed that petitioner was entitled to recover of defendant for the loss of his hand, and awarded him compensation for a period of 150 weeks at $12 per week. The court, however, gave defendant credit for a period of 12 weeks at $12 per week, which covered the period from the date of plaintiff's injury up until Christmas, 1923; it appearing that defendant had paid petitioner his full weekly wage during that period. The evidence shows that these payments, however, were not made by defendant, nor were they received by petitioner, as payments under the Workmen's Compensation Act; but were made by defendant pursuant to an agreement with petitioner made immediately after the injury that he would pay petitioner full time during his term of employment, which was from August 1, 1923, till Christmas, 1923.

From the trial court's judgment both defendant and petitioner have appealed to this court. Defendant appealed from the entire judgment, and petitioner appealed from so much of the judgment as refused him compensation for the loss of an arm, and confined his compensation to the loss of a hand merely.

Both petitioner and defendant have assigned errors, which we shall proceed to consider. We will consider and dispose of defendant's assignments of error first.

We will first dispose of defendant's assignment of error to the effect that the court erred in not holding that chapter 84 of the Acts of 1923 failed to amend chapter 123 of the Acts of 1919, known as Workmen's Compensation Act, so as to make it apply to employers using the services of not less than five persons for pay.

Section 2 of the original act of 1919 provides as follows:

"Be it further enacted, that in this act, unless the context otherwise requires:

(a) 'Employer' shall include any individual, firm, association or corporation, or the receiver, or trustee of the same, or the legal representatives of a deceased employer, using the services of not less than ten persons for pay. If the employer is insured it shall include his insurer, unless otherwise herein provided."

Section 3 of said act reads:

"Be it further enacted, that from and after the taking effect of this act, every employer and every employé, except as herein stated, shall be presumed to have accepted the provisions of this act, respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby, unless he shall have given prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided."

Section 6 provides:

"Be it further enacted, that this act shall not apply to:

(a) Any common carrier doing an interstate business while engaged in interstate commerce.

(b) Any person whose employment at the time of injury is casual, that is, one who is not employed in the usual course of trade, business, profession or occupation of the employer.

(c) Domestic servants and employers thereof; nor to farm or agricultural laborers and employers thereof.

(d) In cases where less than ten persons are regularly employed; provided, however, that in such cases the employer may accept the provisions of this act by filing written notice thereof with the state factory inspector at least thirty days before the happening of any accident or death, and may at any time withdraw the acceptance by giving like notice of withdrawal."

By section 2 of the amendatory act (chapter 84, Acts of 1923), it is provided as follows:

"Be it further enacted that said act be and the same is hereby amended by striking out in line 5 of paragraph (a) of section 2 of the said act the word 'ten' and substituting therefor the word 'five.' "

This amendment makes section 2 of the original act read as follows: "(a) 'Employer' shall include any individual, firm, association or corporation, or the receiver, or trustee of the same, or the legal representatives of a deceased employer, using the services of not less than five persons for pay. If the employer is insured it shall include his insurer, unless otherwise herein provided."

It will be noted that the next section, section 3 of the original act, provides that from and after the taking effect of said act every employer and every employé, except as stated in said act, shall be presumed to have accepted its provisions, respectively, to pay and accept compensation for personal injury or death arising out of and in the course of the employment, and shall be bound thereby, unless he shall have given prior to any accident resulting in injury or death, notice to the contrary in the manner provided in said act.

It would therefore seem that the Legislature, in the amendment above set out, has expressed in plain terms the intention and purpose of making the Compensation Act apply to all employers using the services of not less than five persons. It is true that the amendatory act does not in express terms specifically refer to and undertake to amend section 6, subsec. (d), of the original act, which provides that the act shall not apply in cases where less than ten persons are regularly employed; but the intention and meaning of the Legislature is clear and can be easily determined from the language of the amendatory act.

In 25 R. C. L. 960, it is said:

"In the interpretation and construction of statutes the primary rule is to ascertain and give effect to the intention of the Legislature. As has frequently been stated in effect, the intention of the Legislature constitutes the law. All rules for the interpretation and construction of statutes of doubtful meaning have for their sole object the discovery of the legislative intent, and they are valuable only in so far as, in their application, they enable us the better to ascertain and give effect to that intent. Even penal laws, which it is said should be strictly construed, ought not to be so construed as to defeat the obvious intention of the Legislature."

Section 6 of the original act was intended to make it clear just what persons or corporations were not bound by the act, and therefore repeated the provision already set out in section 2, but stated in the negative form, to the effect that when ten men are employed the act applies, and when less than ten are employed it shall not apply, unless the employer accepts its provisions as provided for in the latter part of said section.

Any other construction of the amendatory act would render it meaningless. If the construction insisted upon by counsel for defendant were adopted, section 3 of the original act, which makes it applicable and requires the payment of compensation as amended, would, in effect,...