Greener v. E. I. du Pont De Nemours & Co.
Decision Date | 17 March 1950 |
Citation | 190 Tenn. 105,26 Beeler 105,228 S.W.2d 77 |
Parties | GREENER v. E. I. DU PONT DE NEMOURS & CO. 26 Beeler 105, 190 Tenn. 105, 228 S.W.2d 77 |
Court | Tennessee Supreme Court |
Louis Farrell, Jr., and Jack Norman, Nashville, for plaintiff in error.
Charles L. Cornelius, Nashville, Abel Klaw, Wilmington, Del., for defendant in error.
This is a suit to recover benefits under the Workmen's Compensation Law, Williams' Code, Sec. 6851 et seq., Chapter 139, Public Acts of 1947.
This case was reversed and remanded on appeal to this Court at the December term 1948, and is reported in 188 Tenn. ----, 219 S.W.2d 185, where it was held that the allegations of the petition were sufficient to take the case to proof, and that the trial court erroneously sustained the demurrer. Following the remand, defendant filed its answer to the petition, and after proof was taken, the case was tried on its merits.
When petitioner closed his case, consisting of the deposition of his physician, Dr. R. B. Burrus, petitioner's testimony, and the testimony of Dr. Z. C. Gammel, called as a witness by petitioner, defendant moved the court to dismiss the petition for the reason that petitioner's proof, taken in its most favorable light, failed to entitle him to benefits under the Workmen's Compensation Law, as amended. The trial court sustained this motion and an order was entered dismissing the petition at petitioner's cost.
Section 1 of Chapter 139, Public Acts of 1947, amending Code, Sec. 6852, contains the following provisions:
'When the employer and employee are subject to the provisions of the Workmen's Compensation Act, the partial or total incapacity for work or the death of an employee resulting from an occupational disease as herein listed and defined shall be treated as the happening of an injury by accident or death by accident, and the employee, or in case of his death his dependents, shall be entitled to compensation as provided in this Act.'
Chapter 139, Public Acts of 1947, became effective March 12, 1947.
In order to recover benefits under the amendatory Act it was necessary for petitioner to prove: (1) that on March 12, 1948, he did not have the occupational disease for which he was seeking compensation; (2) the date his partial or total incapacity for work occurred; and (3) that the occupational disease arose out of and in the course of his employment by defendant.
In his deposition Dr. Burrus testified, in part, as follows:
'Q. When was the first time that you recall that you diagnosed his (Mr. Greener's) complaint as lead poisoning? A. November, 1945, would be about as near as I could come at it.
'Q. November, 1945? A. Yes, sir.
'By Mr. Farrell:
'Q. Did you say 'after' or 'in' November? A. I say about that time. I came back in October, 1945. I got out of the Army in October sometime, 1945.
'By Mr. Cornelius:
'
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...is material evidence to support the finding of the trial court, the judgment will not be disturbed. In Greener v. E. I. Du Pont De Nemours & Co., 190 Tenn. 105, 228 S.W.2d 77, 79, the Court said: 'Where this is true, we have repeatedly held in compensation cases that we do not look to the p......