Moore v. Nashville Union Stock Yards

• Citation: 90 S.W.2d 524
• Parties: MOORE v. NASHVILLE UNION STOCK YARDS, Inc.
• Decision Date: 18 February 1936
• Court: Tennessee Supreme Court

90 S.W.2d 524

MOORE v. NASHVILLE UNION STOCK YARDS, Inc.

Supreme Court of Tennessee.

February 18, 1936.

Error to Circuit Court, Davidson County; E. F. Langford, Judge.

Proceeding under the Workmen's Compensation Act by Mattie May Moore for the death of her son, opposed by the Nashville Union Stock Yards, Incorporated, employer. The petition was dismissed, and petitioner brings error.

Affirmed.

David Keeble and Wm. M. Greene, both of Nashville, for plaintiff in error.

Wm. Howard Ewing and Norman Farrell, both of Nashville, for defendant in error.

GREEN, Chief Justice.

From a judgment dismissing her petition under the workmen's compensation statute (Code 1932, § 6851 et seq.) to recover for the death of her son, alleged to have resulted from an accident sustained while in defendant's employ, the petitioner has appealed to this court.

A serious question arises as to the admissibility of the evidence by which petitioner undertook to show that the dead boy sustained an accident arising out of and in the course of his employment. For the purposes of this opinion, we may omit consideration of that question.

The deceased was seventeen years of age at the time he is said to have met with the accident. He was employed in the defendant's stockyards and it is averred that he was kicked on the leg by a cow, while driving cattle into a pen, in December, 1934. Evidence introduced by petitioner tends to show that the kick of the animal made a bruised place on the boy's leg, that the limb began to pain him, and that he began limping just after receiving the blow. The boy's leg continued to hurt him and he continued to limp, but neither he nor his mother seems to have regarded his condition serious. He kept on working.

Some time in the spring of 1935 the deceased went to a negro called "Doc" and took some electrical treatments. The mother does not know who "Doc" was, whether he was a licensed physician or not. Thereafter the young man went to a chiropractor and took some treatments. His mother from time to time bathed his leg with hot water.

The boy's leg steadily grew worse, and in April, 1935, he went to the General Hospital. During April, 1935, defendant's manager learned of the boy's condition, the boy having quit work, and defendant's manager, in company with an attorney for defendant's insurer, called on the mother, and, after obtaining her permission, removed the boy from the General Hospital to St. Thomas Hospital, where it was thought he would have better treatment. An operation was performed on the boy's leg. The bone was found to be in bad condition, fever followed, and complications described in the record by medical terms, and death resulted in July, 1935.

No officer or superior servant of the defendant had any knowledge that an accident had happened to the young man, or that there was such a claim, until April, 1935. According to petitioner's evidence, the boy undertook to conceal his disability from his employer, fearing he would lose his job if the employer learned of any physical incapacity. It further appears from evidence introduced by petitioner that the boy, when asked by persons at the stockyard about his lameness, replied that he had rheumatism.

The testimony of Dr. Brower, speaking from X-ray pictures made of the boy's leg at the hospital and from the history of the case, tends to show that proper medical treatment and advice in the beginning of the boy's trouble would have prevented serious consequences. The defendant insists that it is absolved of any liability herein by reason of the failure of the young man to give the notice of injury, within thirty days after the occurrence of the accident, as prescribed by Code, §§ 6872, 6873. Dr. Brower's testimony shows rather clearly that the employer was prejudiced by failure to receive such notice, if liability exists.

The petitioner insists that her son having been under eighteen years of age at the time of the accident was relieved of the obligation as to notice imposed by the sections of the Code just mentioned. This contention cannot be sustained.

Code, § 6872 exacts this notice of "every injured employee or his representative * * * unless reasonable excuse for failure to give such notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented."

Code, § 6852 (b) provides that "`employee' shall include every person, including a minor, in the service of an employer," etc.

These two statutory provisions mean that every employee must give the prescribed notice and that one in the service of an employer, although he be a minor, is still an employee.

There is nothing in the record indicating that the deceased was illegally employed under the child labor statutes, Code, § 5314 et seq. There is an intimation in ...