Graham v. J.W. Wells Brick Co.

• Decision Date: 13 December 1924
• Citation: 266 S.W. 770,150 Tenn. 660
• Parties: GRAHAM v. J. W. WELLS BRICK CO.
• Court: Tennessee Supreme Court

266 S.W. 770

150 Tenn. 660

GRAHAM v. J. W. WELLS BRICK CO.

Supreme Court of Tennessee.

December 13, 1924

Appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Petition by J. L. Graham for compensation under the Workmen's Compensation Act against the J. W. Wells Brick Company. From a judgment sustaining a demurrer, petitioner appeals. Affirmed.

Roddy & Wrinkle and Sizer, Chambliss & Johnson, all of Chattanooga for appellant.

Neal L Thompson, of Chattanooga, for appellee.

HALL J.

The petition in this case was filed by J. L. Graham, who will hereinafter be referred to as petitioner, against J. W. Wells Brick Company, who will hereinafter be referred to as defendant, seeking compensation under the Workmen's Compensation Act (chapter 123, Acts of 1919).

Defendant demurred to the petition, which demurrer was sustained by the trial judge, and petitioner's suit dismissed. From this judgment he has appealed to this court and assigns errors.

The petition alleged:

That on and prior to November 14, 1921, petitioner was an employee of the defendant, and while in the regular course of his employment he suffered an injury on the date above named which arose out of his employment, being struck in his right eye. That he immediately reported the injury to defendant and was sent by defendant to a surgeon for the purpose of having the injury treated; the surgeon being employed by defendant, or by the insurance company carrying liability of defendant under the Workmen's Compensation Act.

That but one of petitioner's eyes was affected at the time, and he was able to continue in the employ of defendant, receiving full pay, working regularly, and being frequently treated by the physician employed at the expense of defendant.

That petitioner was not advised that his eye was in a serious condition, and that it would probably be lost, and had suffered no disability from his work other than impaired vision, but had received his full wage, and had everything apparently possible done for his relief by defendant.

That the treatment heretofore referred to continued until the latter part of the month of December, 1922, when the surgeon, who had been treating petitioner, advised him that he had discovered that petitioner had entirely, completely, and permanently lost the sight of the injured eye, and petitioner was advised by the surgeon that no further treatment would be given, as no relief could be had.

That petitioner, therefore, requested that defendant pay him the indemnity provided by the statute for the complete loss of an eye, or 100 weeks at the rate of $9 per week, his average weekly wage having previously amounted to $18 per week, but defendant company refused and failed to compensate petitioner because the insurance company carrying defendant's insurance had refused to recognize liability.

It will be observed from the averments of the petition that the accident happened November 14, 1921, and petitioner did not bring this action until May 9, 1923, a period of 18 months after the accident.

It will also be noted that injury and impairment of vision resulted to his eye as soon as the accident happened, and he reported said injury to defendant and was treated by defendant's physician or surgeon until December, 1922, a period of 13 months. At this time it was discovered by the surgeon that petitioner had totally and permanently lost the sight of the injured eye, but he still did not institute suit for 5 months thereafter.

The grounds of the demurrer were:

(1) That the petition failed to allege that petitioner gave defendant the written notice required by sections 22 and 23 of the Workmen's Compensation Act, and within the time therein provided.

(2) That the petition showed on its face that it was filed more than one year after the accident resulting in the injury for which compensation is claimed.

The circuit judge overruled the first ground of the demurrer, but sustained the second ground. It is to this action of the trial judge that petitioner's assignments of error are directed.

It is insisted that the action of the trial judge is erroneous because it was not an equitable construction of the act upon which the petition was based. That section 47 of the act provides:

"That the rule of common law requiring strict construction of statutes in derogation of common law shall not be applicable to the provisions of this act, but the same is hereby declared to be a remedial act which shall be given an equitable construction by the courts to the end that the objects and purposes of this act may be realized and attained."

The averments of the petition showed that immediate injury resulted to petitioner from the accident; that the injury was known to petitioner because he was being treated for it. It consisted of an impairment of vision which was itself compensable under section 28c of the act, whether he was able to continue work or not (Hartford Hosiery Mills v. Jernigan, 149 Tenn. 241, 259 S.W. 546), and he could have brought suit at any time. It is insisted, therefore, that, giving the act the construction counsel for petitioner claims should be given it, his suit is still barred by the one-year limitation, because the injury or impairment of the vision of his eye developed long before the expiration of one year.

Section 2d provides that "injury" and "personal injury" shall mean only injury by accident arising out of and in the course of employment. The word "accident" is not defined.

Section 24 of the act reads as follows:

"Be it further enacted, that the right to compensation under this act shall be forever barred unless within one year after the accident resulting in injury or death occurred the notice required by section 23 is given the employer and a claim for compensation under the provisions of this act is filed with the tribunal having jurisdiction to hear and determine the matter."

Section 31, among other things, provides:

"That the time within which the following acts shall be performed under this act shall be limited to the following periods respectively:

(1) Actions or proceedings by an injured employee to determine or recover compensation, one (1) year after the...