Jones v. Lenoir City Car Works

• Decision Date: 14 July 1965
• Citation: 392 S.W.2d 671,216 Tenn. 351,20 McCanless 351
• Parties: Dailey E. JONES, Plaintiff-in-Error, v. LENOIR CITY CAR WORKS, Defendant-in-Error. 20 McCanless 351, 216 Tenn. 351, 392 S.W.2d 671
• Court: Tennessee Supreme Court

Page 671

392 S.W.2d 671

Dailey E. JONES, Plaintiff-in-Error, v. LENOIR CITY CAR WORKS, Defendant-in-Error.

20 McCanless 351, 216 Tenn. 351, 392 S.W.2d 671

Supreme Court of Tennessee.

July 14, 1965.

Acuff & Acuff, Knoxville, for plaintiff in error.

Donaldson, Montgomery & Kennerly, Knoxville, for defendant in error.

CHATTIN, Justice.

Plaintiff-in-error, Dailey E. Jones, hereinafter referred to as petitioner, brought this action for workmen's compensation benefits due to an alleged occupational disease, silicosis, contracted in the course of his employment against the defendant, Lenoir City Car Works.

The defendant relied upon the one year statute of limitations which, after a hearing, was sustained by the trial judge and dismissed petitioner's suit.

Petitioner has perfected an appeal in error to this Court. The errors assigned complain of the action of the trial judge in admitting an extrajudicial statement of petitioner into evidence; and that there is no material evidence to support the judgment.

The facts are petitioner was sixty-one years of age at the time of the trial, June 24, 1964. He had an eighth grade education. He was employed by the defendant as a coremaker. Sand and silicate clays were used to make the cores. In the process of making the cores, dust ladened with airborne particles of silicate was created.

It is the theory of the petitioner the breathing of the silicate dust caused the contraction of silicosis.

Petitioner had worked on and off for the defendant over a period of forty years. Approximately eight years prior to the trial, he was examined by defendant's physician and x-rays were made of his chest. He was told at this time he should quit smoking and drinking. Periodically during this period of time, the defendant's physician had examined and taken x-rays of petitioner's chest.

During the month of January 1963 he was examined twice by the defendant's physician. At no time was he advised by the physician of the condition of his health.

Petitioner testified at the trial, as follows:

'Q. Have you been under the care of a doctor here?

'A. I've been under 'Doc' Freedman for the last two years, I guess.

'Q. Do you know what his diagnosis has been as to your condition of your lungs?

'A. Well, he said that it was pretty rugged; told me.

'Q. What do you mean by 'pretty rugged'? Just tell the court.

'A. Well, this bronchitis and this dust, I reckon is what he had reference to.

* * *

'Q. What did Dr. Freedman tell you about working--your working condition?

'A. Well, he told me I wasn't able to work or do nothing.'

He testified on his pre-trial deposition, which is filed in the record, as follows:

'Q. Well, when did you first notice that condition? When did you first----

'A. Well, just like I told you, just so bad, it happened about three years ago, you know, when I was having these attacks, see.

'Q. Well, how would you feel? Was there pain or what was the matter?

'A. Yeah, pain. Go through there, and I'd get sore.

'Q. You say 'through here.' That would be in your chest?

'A. Yeah, and then just seemed like a ball of fire or something going across there.'

He had been under the care of Dr. Harold D. Freedman since May 1962. Dr. Freedman had treated him for 'hypertension and extreme weakness with shortness of breath.'

In May 1963, he went to Dr. Robert W. Newman, who hospitalized him and made tests at the University of Tennessee Hospital. He was in the hospital for about five days after which, he returned to work. He worked for two weeks, but pain in his chest grew worse and he quit his work on July 19, 1963. Eight weeks after the tests were run at the hospital, Dr. Newman informed petitioner he had silicosis.

After petitioner quit work he made application for retirement benefits.

On August 30, 1963, petitioner was requested to make a statement as to his application for retirement. His statement was recorded on a dictaphone recorder. In answer to questions of Mr. T. C. Mims, Claim Agent, petitioner stated he had had shortness of breath for about five or six years and that it had progressively become worse. He also stated he had always thought this condition was caused from inhaling the silicate dust.

He further admitted he had talked with Mr. J. E. Griffith, Claim Agent, in January and February of 1960; and that Griffith told him at first he had a 'cavity' in his right lung. That on the second occasion he talked with Griffith he told him he had a spot on his lung.

Counsel objected to the introduction of the foregoing extrajudicial statements on the grounds that petitioner was not represented by Counsel at the time and the statements were not under oath. The trial judge overruled the objection.

The record shows, however, on the trial of the case, petitioner, on cross examination, admitted the truth of the statements.

It is settled that in this State that prior inconsistent statements of a witness are admissible for the purposes of impeachment and testing the credibility of the witness, but are not to be considered as substantive evidence of the truth of the matter asserted therein. Moseley v. Goodman, 138 Tenn. 1, 195 S.W. 590 (1917); King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948); Rhea v. State, 208 Tenn. 559, 347 S.W.2d 486 (1961).

But, where the witness, on cross examination and under oath, affirms the truth of the extrajudicial statements, he is then subject to the safeguards of the hearsay rule, and the statements may then be considered as substantive evidence of the truth of the matter asserted. McFarlin v. State, Tenn., 381 S.W.2d 922 (1964).

Moreover, '[a]ny statement, whether oral or written, made by or attributable to a party to an action, which constitutes an admission against his interest and tends to establish or disprove any material fact in the case, is competent evidence against him in such action.' 31A C.J.S. Evidence Sec. 272, page 697; Nelson v. Rural Educational Ass'n, 23 Tenn.App. 409, 134 S.W.2d 181 (1939).

We are of the opinion the trial judge was not in error in admitting this evidence. We overrule petitioner's assignment on this point.

We now consider whether there is any material evidence to support the finding of the trial judge petitioner's action was barred by the statute of limitations of one year.

T.C.A. Section 50-1108 provides:

'The right to compensation for an occupational disease shall be forever barred unless suit therefor is commenced within one (1) year after the beginning of the incapacity for work resulting from an occupational disease * * *.'

In construing the foregoing provision, this Court, in the case of Adams v. American Zinc Company, 205 Tenn. 189, 326 S.W.2d 425 (1959), said: '[T]hat 'the beginning' of the incapacity for work resulting from an occupational disease, within the meaning of Section 50-1108, T.C.A., is when such occupational disease, with the knowledge of the employee, or knowledge that he should have had in the exercise of reasonable caution, that he has an occupational disease and that it has injuriously affected his capacity to work to a degree amounting to a compensable disability.'

Petitioner testified at the trial the first time he realized he had silicosis was when Dr. Newman told him. He thought he was suffering from bronchitis.

However, in the statement to Mr. Mims he testified, as follows:

'Q. It is my understanding that you have applied for retirement?

'A. That's right.

'Q. What is the basis of your application for retirement?

'A. The basis of my retirement is I have had a shortness of breath, and so the Company has been sending me up there to have these x-rays made, and they took a number, I don't know, about thirty, probably thirty or more x-rays of me, and most of the x-rays were on my right side, of my right lung. I kept working as long as I could, and it seemed like every day got worse on me. I was willing to work, but--you know, what my mind is, but my physical strength, you see, I couldn't hold out, the exertion. I would go over there and maybe work an hour or something like that, and I would have to rest for a good bit then.

'Q. How long has this existed, Mr. Jones?

'A. Well, I have noticed it for about five or six years.

'Q. About five or six years. You have had this shortness of breath----

'A. Yeah, it gets worse, see, but I noticed the first symptoms of it, I guess, about six years ago.

'Q. Being short of breath. Did you have a cough or anything like that?

'A. No I didn't seem to have any cough; it was shortness of breath.

* * *

'Q. Did you know what was wrong with you? When did you learn what was wrong with you?

'A. Well, I didn't know exactly what was wrong. I thought I knew. And I have been exposed----

'Q. What did you think it was?

'A. Well, I thought it was my lungs, because they kept hurting.

'Q. You know what caused it, what you thought caused it?

'A. Well, I thought it was that dust--I always did think that was what caused it.

'Q. In other words, are you saying that you have been suffering now five or six years----

'A. Yeah, I guess I have right about that.

'Q. You thought that working in the foundry was, inhaling dust, and all, was causing this?

'A. Yeah, and I believe that silica, when I worked in silica was the starting of it.

* * *

'Q. In other words, you have been aware for a number of years that your health was failing, and you attributed it to working there?

'A. Yeah, that is what I think it is, yeah.

* * *

'Q. All right. Mr. Jones, do you remember in February of 1960--there again is a date which I don't have any idea whether you remember or not, but I am trying to get to a point here--do you remember talking to a Claim Agent named J. E. Griffith?

'A. Yeah.

'Q. In Knoxville?

'A. I do.

'Q. Or along about two years ago, or three years ago?

'A. Yeah. I believe that was before the office burned down over there. I believe it burned down in 1959.

'Q. You spoke with him in February 1960? Does it seem to you like it was...