McBrayer v. Dixie Mercerizing Co.

• Decision Date: 29 November 1941
• Parties: McBRAYER v. DIXIE MERCERIZING CO. et al.
• Court: Tennessee Supreme Court

156 S.W.2d 408

178 Tenn. 135

McBRAYER v. DIXIE MERCERIZING CO. et al.

Supreme Court of Tennessee.

November 29, 1941

Error to Circuit Court, Hamilton County; L. D. Miller, Judge.

Suit under the Workmen's Compensation Law by Mrs. Nell Webb against the Dixie Mercerizing Company and others, wherein the suit was revived in the name of Mrs. Cora McBrayer administratrix of the estate of Mrs. Nell Webb, deceased. Judgment for the defendants, and the petitioner brings error.

Judgment affirmed.

Phil B Whitaker and Harry Hite, both of Chattanooga, for plaintiff in error.

Finlay & Campbell and Howard J. Sears, all of Chattanooga, for defendants in error.

DeHAVEN Justice.

This is a suit brought under the Workmen's Compensation Law of Tennessee, Code 1932, § 6851 et seq. Mrs. Nell Webb averred in her petition, filed January 6, 1940, that during the month of September, 1938, while she was regularly employed by defendant, and while pursuing her usual duties, a large spool of yarn was caused to fall from up above the place where she was standing and struck her on the right breast; that she did not know and could not have known the blow would result in serious injury, and it was not until April, 1939, that she was apprised of the fact that a cancer had developed; that immediately thereafter she notified defendant of her condition and what had caused it, and from that date until the date of the filing of this petition (January 6, 1940) "she has been continuously confined to her bed and physically unable to look after and manage her affairs, and her disability was such that she was physically incapacitated from instituting suit to recover compensation;" that from notification of the injury to the date of the filing of her petition, defendant furnished a nurse to look after and treat her.

Petitioner further averred that in November, 1939, her condition became such that it was necessary for her to undergo an operation for the removal of her right breast, which loss resulted directly from the blow she received in September, 1938; that from the date she received the blow up until the date the injury developed to where it could be detected, she continued in the employment of defendant and had no means of knowing that because of the blow the tissues in her breast had been torn loose and weakened and the blood cells and blood vessels therein had been damaged so that by gradual process which was not detectable, a malignant condition was developing. She further averred that by reason of the blow and the developments that resulted therefrom, she was rendered totally and permanently disabled and that such disability commenced in April, 1939, and continued up to the filing of the petition. She sought to recover compensation of 50% of her average weekly wage of $23, for a period not to exceed 400 weeks, and $5 per week not to exceed 400 weeks, and $5 per week not to exceed 150 weeks, plus medical and hospital expenses not to exceed $200.

The trial judge dismissed the suit upon demurrer. On appeal to this court the judgment sustaining the demurrer and dismissing the suit was reversed and the cause remanded for further proceedings. While the suit was pending on demurrer Mrs. Webb died and the suit was revived in the name of Mrs. Cora McBrayer, mother of deceased, as administratrix of the estate of Mrs. Webb, deceased, and individually as a dependent of the deceased.

Upon remand of the case, defendant made answer and denied all of the material allegations of the petition.

Upon the hearing of the case, the trial judge found as follows:

"I do not think the petitioner is entitled to recover in the case for the following reasons:

"1. The proof does not establish as a fact that the deceased died as a result of a cancer caused by her alleged injury. That disease is too common to attribute it to a specific cause on mere speculation.

"2. I do not think that the deceased was either physically or mentally incapacitated to file or cause her claim for compensation to be filed within the statutory period so as to excuse her as a matter of law.

"Under the law and proof in the case the court is compelled to find against the petitioner and in favor of the defendant."

A motion for a new trial was overruled and petitioner has appealed to this court and assigned errors.

It is first complained that the trial judge erred in holding that the proof does not establish as a fact that petitioner's intestate died as a fact that petitioner's intestate died as a result of cancer caused by her injury and that the disease is too common to attribute to a specific cause on mere speculation. It is objected by defendant that petitioner did not in her motion for a new trial set up as a ground therefor that the trial judge erred in this respect. She did, however, assign as grounds for a new trial, among others, that "there is no evidence to support the verdict" and "that the verdict is contrary to the evidence." These, we think, afford ample basis for the first assignment of error here, which pointedly challenges the finding of the trial judge that the deceased did not die as the result of cancer caused by the injury.

It is the well-established rule that in a compensation case, the findings of fact by the trial judge will not be disturbed by this court if sustained by any material evidence.

The deposition of Mrs. Webb was taken on January 24, 1940, pending the demurrer, by leave of the court, so that her testimony might be perpetuated. She died on February 10, 1940. This deposition was read in evidence on the trial of the case. The substance of her testimony is that in September, 1938, while standing tieing a knot, one Delmar Woodard, an employee of defendant, dropped a cone of yarn which struck her on the upper part of her right breast, making a little purple spot, "like a little bruised place" on her breast, and a little lump in it by the time she got home, which she showed her husband when she got home; that she did not suffer any pain from her breast, and continued to work for defendant, until April 14, 1939, at which time a lump had developed in her right breast and she consulted Dr. Winters, her family physician, who passed away in June, 1939, and was advised that she had a cancer of the breast; that she did not know that she had a cancer until so advised. That she went to bed on April 14th and was there continuously confined to the day she gave her deposition. In November, 1939, Dr. Laws removed her right breast. In the meantime she had been attended by Dr. Haywood and Dr. Lydes. She further testified that on April 16, 1939, she advised Miss Cravens, the defendant's professional nurse of the accident, who stated she would see that she (Mrs. Webb) was taken care of. She further testified that she had never before received injury to her breast and that no one in her family had had cancer. That she had worked for defendant for eighteen years.

L. O Webb, husband of petitioner, testified in substance, that in September, 1938, Mrs. Webb came home and exhibited to him "a slight red like place," about as big as his thumb nail, on her right breast; that there was no lump in the breast at that time; that the place on her breast cleared up in a few days, and she made no complaint about her breast until April 14, 1939; that she was confined to her bed from that time until her death, and was under constant medical treatment; that she was helped out of bed and carried to the doctor's several times in an automobile, and when carried back home would go to bed. That he first learned that his wife had cancer on the night of April 14, 1939; that he had not noticed any lump on her breast until April 14th; that the lump continued to grow until at the time of the operation it was larger than his...