McClain v. Kingsport Imp. Corp.

• Decision Date: 19 December 1922
• Citation: 245 S.W. 837,147 Tenn. 130
• Parties: MCCLAIN v. KINGSPORT IMPROVEMENT CORPORATION.
• Court: Tennessee Supreme Court

245 S.W. 837

147 Tenn. 130

MCCLAIN v. KINGSPORT IMPROVEMENT CORPORATION.

Supreme Court of Tennessee.

December 19, 1922

Appeal from Law Court, Sullivan County; D. A. Vines, Judge.

Suit by Charles McClain, guardian of the minor children of A. W Plaster, deceased, against the Kingsport Improvement Corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

GREEN J.

This suit was brought under the Workmen's Compensation Act (Laws 1919, c. 123) by the guardian of the minor children of A. W. Plaster, deceased, to recover the statutory allowance for the benefit of said children. The deceased was in the employ of defendant, Kingsport Improvement Corporation, and met his death under circumstances hereinafter detailed. There was a judgment for the plaintiff below, from which the defendant has appealed in error.

The first defense made is that the court below, the law court at Kingsport, was without jurisdiction to try the case. We think this contention is without merit. The law court at Kingsport was created by chapter 737 of the Private Acts of 1919, for the Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, and Fifteenth civil districts of Sullivan county. An examination of the act satisfies us that the Legislature intended to confer on this court all the powers of a circuit court for the territory within its jurisdiction.

It is next said that the petition filed herein does not aver that notice of the accident was given to the employer within 30 days thereafter as required by section 22 of chapter 123 of the Acts of 1919. Without intimating that such an averment is necessary in any case, it was certainly not necessary here. The petition disclosed on its face that the dependents in whose behalf the suit was brought were all minors. We are of opinion that infancy of the beneficiaries is a reasonable excuse for failure to give such notice. "No laches shall be adjudged to the plaintiffs within age." Nelson v Allen, 9 Tenn. (1 Yerg.) 360.

"It is a general principle of law, that no laches, or negligence can be imputed to a person who is within the age of twenty-one years." State v. Crutcher's Administrator, 32 Tenn. (2 Swan.) 504.

In Patten Hotel Co. v. Milner, 145 Tenn. 632, 238 S.W 75, the widow was the direct beneficiary, and the ruling in this case as to notice is not applicable where all the beneficiaries are minors.

The guardian could not have given notice within 30 days of the accident. Plaster was killed September 13, 1921, and the guardian was not qualified until the latter part of that year or the earlier part of 1922. The reason that the statute required notice within 30 days, was to give the employer an opportunity to investigate the cause of the accident and the nature of the injury at an early stage. Patten Hotel Co. v. Milner, supra. There would, therefore, be no justification for an effort to extend this requirement as to notice to a guardian appointed several months later. All proceedings under the statute have to be brought within one year after the accident.

What we have said in this connection is a sufficient reply to the argument that this suit should be dismissed because the 30-day notice to the employer was not proven.

The deceased was employed by defendant, Kingsport Improvement Corporation, as an assistant landscape gardener. At the time of his death he was engaged in working on some trees on a farm known as Rotherwood, belonging to Kingsport Farms, a corporation allied with Kingsport Improvement Corporation. Kingsport Farms was charged by Kingsport Improvement Corporation for the work. So that it appears deceased was regularly in the service of his employer. Plaster lived at the town of Kingsport, about two miles from the farm where he was working. His employer furnished him a horse to ride back and forth between his home and his place of work. Plaster kept the horse at his house in Kingsport at night. He was thrown from his horse while riding along the public road from Kingsport to the Rotherwood farm. The horse took fright at a passing train. The accident occurred between 7 and 8 o'clock in the morning, at the time when deceased usually went to his work. The proof shows that the horse was furnished him to ride back and forth between his home and his place of employment, as just stated, and there is no suggestion on the record that deceased ever used the horse for any other purpose or was permitted to do so. Upon these facts the trial judge was fully justified in concluding that Plaster met his death while going to...