Rhyne v. Lunsford

Decision Date11 December 1953
Citation263 S.W.2d 511,195 Tenn. 664,31 Beeler 664
Parties, 195 Tenn. 664 RHYNE v. LUNSFORD.
CourtTennessee Supreme Court

Jennings, O'Neil & Jarvis, Knoxville, for appellants.

Crawford & Hurd, Newport, for appellee.

TOMLINSON, Justice.

This is a workmen's compensation case in which the Chancellor found that the employee, Allen G. Lunsford, (1) received an injury arising out of, and in the course of, his employment by Charles T. Rhyne, Sr., d/b/a Rhyne Lumber Company, and (2) that it was an injury to Lunsford's back resulting in a 75% permanent partial disability, and (3) for which Lunsford is entitled to compensation under those provisions of the Workmen's Compensation Act carried in the two last paragraphs of section 6878(c) of the Code Supplement.

A decree was entered in accordance with the findings stated. Motion for a new trial having been overruled, the employer has appealed. Logically considered, his first insistence is that Lunsford's employment was casual only; hence, so it is insisted, not compensable.

The employer is engaged in the lumber business. This includes the assembling and sawing, etc. of lumber. In order to facilitate this part of his business, employer decided to do certain construction work. This required the digging of a ditch about nine feet deep into which certain equipment or a platform of some kind was to be placed for the passage of lumber to the lumber saws. Among the several employees engaged in the digging of this ditch was appellee, Lunsford. It was while so engaged that he received the injury for which the Chancellor finds that he should be paid compensation.

Appellant's contention is that such construction work was not in the usual course of the appellant's business; that Lunsford had just been put to work the day he was injured for the 'primary' purpose of helping as a laborer in this construction work. In considering the merits of this insistence it must be kept in mind that the rule upon which employer relies 'is not to be extended to regular and general employees about a plant in connection with its usual business who happen to be at the time of the accident engaged, at the direction and under the supervision of the company's managers, on work of a repair or construction character'. Mashburn v. Ne-Hi Bottling Co., 191 Tenn. 135, 139-140, 229 S.W.2d 520, 232 S.W.2d 11.

Lunsford was employed on January 18, 1951 by Rhyne to work in Rhyne's regular lumber business. His employment continued regularly for a period of six to seven months as 'a general laborer there at the plant'. He 'did anything there was to do in the mill', that a common laborer could do. Perhaps his principal work during this period was 'tailing the cut off saw'. At the end of this period he was laid off because of lack of business. The testimony of appellant is that 'when we lay off a man we try to get him back, if we can'.

Lunsford was called back to work on October 29, 1951 through the Tennessee Employment Bureau Chief in that county. It was at the request of Rhyne to furnish Rhyne a specified number of men, preferably old employees. When Lunsford reported to work he was directed to assist in the digging of this ditch, and it was while so doing three hours later that he received the injuries which resulted in this suit. Some of the employees who were assisting in digging this ditch were regular employees who had not been laid off. For instance, by the side of Lunsford, and doing the same kind of work, was an employee named Edwards whose uninterrupted employment had been for a period of two years.

During Lunsford's six weeks of absence by reason of this injury he was paid $25 per week by reason of the injury. When he did return to work on December 10, 1951 he was put to work at the same laborer's task performed by him during the six months' period of employment commencing in January of that year. On the day he was digging the ditch he was under the supervision of that foreman of the Company who was 'in charge of maintenance and repairs'.

The foregoing evidence supports the Chancellor's finding that Lunsford was in the regular employ of the defendant, rather than a casual employee, at the time he received the aforesaid injury on October 29, 1951. Compare U. S. Rubber Products Co. v. Cannon, 172 Tenn. 665, 671-672, 113 S.W.2d 1184.

It is next insisted that the evidence did not justify the Chancellor in finding that the petitioner (1) suffered any disability, or (2) that the disability, if any, is as much as 75%. In substance, the contention of the employer is that Lunsford is malingering. That seems to be the opinion of two doctors called as witnesses by defendant.

Lunsford was in this ditch using a pick and shovel. About nine feet above was a wheelbarrow into which he was shoveling the dirt from the ditch as it was dug. In the course of raising a shovel of dirt, and when it had been lifted about two-thirds of the distance to the wheelbarrow, he felt a sharp pain in his back between, and at the top of, the hip blades. When he recovered from the first shock he climbed out of the ditch and informed the foreman of his injury. At noon he went home and had difficulty in getting to the house. Prior to this time this thirty-six year old man had never had any trouble with his back. His work had always been that of a laborer or farmer. On the next morning he was driven by a neighbor to Dr. Valentine who treated, and thereafter examined, him several times.

On December 11, Dr. Valentine advised Lunsford that his recovery was sufficient for him to do 'light' work. Thereupon Lunsford returned to Rhyne and was put back to the same labor as that which he was performing during the first six months of his employment. With the exception of intervening Christmas Holidays he continued at such work until January 24, 1952 when he was laid off, or stopped. His testimony is that he was subjected to much pain during all of this time by reason of this injury to his back.

During this period he was returning to Dr. Valentine at regular intervals. Hot packs were being applied. He wore a brace, and slept on a stiff board, all pursuant to the directions of the doctors.

Lunsford owns a small farm and, until he received this injury, tilled it. When in 1952 he undertook to plow or to chop with a hoe the pain was such that he had to quit, according to his testimony and that of his wife. He had to abandon the cultivation of his farm except in so far as he could rent it.

Dr. Valentine expressed the opinion that he may have suffered a 'sacro-iliac strain' by the injury. He last examined Lunsford on August 13, 1952 previous to the commencement of this trial in September. He found that Lunsford still had 'some spasm muscle' and some 'pain on both sides when raising his leg and one could not be raised higher than ninety degrees' without causing considerable pain. The 'x-ray revealed some bone pathology in the fourth lumbar'. This is indicative of 'osteo- arthritis' which, in the doctor's opinion, might have been caused by 'some trauma' and that in his opinion, this arthritis, if it had existed prior to the October 29 injury, could have been aggravated by that injury. The opinion of that doctor from the last examination of Lunsford is that he is able to do only general work of a light nature.

Dr. Mims examined Lunsford two weeks before the trial. X-rays of his back showed 'bony changes' in the 4th lumbar and also 'about the 12th thoracic spinal vertebra'. This condition, in the opinion of Dr. Mims could have been caused by an injury, or had this condition existed prior to the injury, its condition could have been aggravated by the injury. When asked 'what is the condition of his back now', he replied 'injury still there, the results of...

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4 cases
  • Great Am. Indem. Co. v. Friddell
    • United States
    • Tennessee Supreme Court
    • 10 June 1955
    ...aggravation of a pre-existing condition, in view of the elementary rules of pleading in Workmen's Compensation cases. Rhyne v. Lunsford, 195 Tenn. 664, 263 S.W.2d 511; Cunningham v. Hembree, 195 Tenn. 107, 257 S.W.2d All assignments of error are overruled. The judgment of the Trial Court is......
  • American Sur. Co. v. Kizer
    • United States
    • Tennessee Supreme Court
    • 15 July 1963
    ...aggravation of a pre-existing disease or condition is compensable. Johnson v. Anderson, 188 Tenn. 194, 217 S.W.2d 939, Rhyne v. Lunsford, 195 Tenn. 664, 263 S.W.2d 511. The fact that petitioner's earnings as a school teacher at the time of the trial had not been greatly reduced from what he......
  • Underwood v. Combustion Engineering, Inc.
    • United States
    • Tennessee Supreme Court
    • 8 February 1957
    ...The important fact is that the phlebitis did exist." As further supporting authority he cites the following cases: Rhyne v. Lunsford, 195 Tenn. 664, 263 S.W.2d 511; Davis v. Wabash Screen Door Co., 185 Tenn. 169, 204 S.W.2d 87; Holeproof Hosiery Co. v. Wilkins, 194 Tenn. 683, 254 S.W.2d 973......
  • Procter & Gamble Defense Corp. v. West
    • United States
    • Tennessee Supreme Court
    • 6 February 1958
    ...'But if that injury aggravated a pre-existing injury or disease, the disability is nevertheless compensable'. Rhyne v. Lunsford, 195 Tenn. 664, 671, 263 S.W.2d 511, 514. W. E. West, brother of petitioner, testified that 'from my observation and what he has told me from time to time' he did ......

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