Shockley v. Morristown Produce & Ice Co.
| Decision Date | 18 June 1937 |
| Citation | 106 S.W.2d 562 |
| Parties | SHOCKLEY v. MORRISTOWN PRODUCE & ICE CO. |
| Court | Tennessee Supreme Court |
O. L. McMahan, of Morristown, for appellant.
J. H. Hodges, of Knoxville, for appellee.
The matters in controversy in this cause arise upon a petition filed by Ollie Shockley on May 14, 1935, in the chancery court of Hamblen county, alleging that on August 6, 1927, her husband was killed near Lynchburg, Va., while in the employ of the defendant, Morristown Produce & Ice Company, and that the accident resulting in his death arose out of and in the course of the employment.
The petition is filed in the cause heretofore pending in said court and which was appealed to this court and in which petitioner was granted a recovery of benefits under the terms of the Workmen's Compensation Law (Code 1932, § 6851 et seq.). The opinion in this original case is reported in 158 Tenn. 148, 11 S.W.(2d) 900. In the original cause the chancellor was reversed and the cause remanded by this court with directions that a decree be entered in the chancery court at Morristown in accordance with the opinion of this court. It was held that complainant and her children were entitled to compensation in the sum of $16 per week until the children became of the age of eighteen years, and after that time payable to the petitioner for her sole use and benefit at the rate of $12.75 per week until the full amount of compensation due her was paid. In the calculation and entering of the final decree on the remand of the case, the attorneys and the court assumed that the aggregate sum to be received should not exceed $5,000.
It is averred in this present petition that the decree entered was erroneous in so limiting the recovery; that as a matter of law the statute provides she was entitled to compensation at the stipulated amount for the full term of 400 weeks. Petitioner avers that the error was due to a misapprehension of law; that the law applicable to cases where persons were permanently and totally disabled was applied instead of the law applicable in death cases.
It is further averred that in pursuance of said decree compensation was paid to her monthly until the full maximum amount of $5,000 was paid; that the last payment was made to her on May 22, 1934; that from that date defendants have been in default on the balance due her under the terms and provisions of the Workmen's Compensation Law of Tennessee. A certified copy of the original decree entered in the chancery court is attached as Exhibit No. 1. The petition contains a proper prayer for relief and for general relief. The defendants interposed a demurrer to the petition, the material grounds thereof being that the petition was filed for the purpose of correcting an error in legal construction or correction of a conclusion of fact made by the chancellor at a term prior to the term at which the petition for correction was filed and more than six years prior to the filing of the petition in this cause. Further, that the matters involved are res judicata and because the full amount of the decree of January 30, 1929, had been paid in full; also that the claim is barred by the statute of limitations of one year and three years if it be considered a petition or bill of review.
By amendment, petitioner states that she sues the defendants for the additional compensation due her incident to the death of her husband over and above that heretofore paid; that this is not to correct the error of law committed in the former case but for additional compensation.
Petitioner relies on the opinion in this court in the case of Clayton Paving Co. v. Appleton, 163 Tenn. 27, 39 S.W.(2d) 1037, which was decided about thirty months after the decree was entered in this cause. In the above-mentioned case of Clayton Paving Co., the situation was almost identical with the situation now presented. A settlement had been made with the dependents, the widow and children, and judgment rendered thereon by the circuit court awarding compensation under the Workmen's Compensation Act. This award was fixed at $15 per week subject to the limitation of $5,000 imposed by section 28 (d) of the act (Code 1932, § 6878 (d), which regulates compensation to injured employees in cases of permanent total disability. It was held by the trial judge, and affirmed by this court, that section 30, subsection 16, of the act (Code 1932, § 6883 (17), providing for compensation to dependents in...
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Aetna Casualty Surety Co v. Flowers
...to benefits and a single judgment for the award granted. See Tenn.Code §§ 6880, 6881, 6890, 6891, 6893; Shockley v. Morristown Produce & Ice Co., 171 Tenn. 591, 106 S.W.2d 562. Nor does the fact that it cannot be known as a matter of absolute certainty that the amount which may ultimately b......
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Nelson v. Cambria Coal Co.
...rendition and entry. The decree became binding on the parties although the amount adjudicated was too small. Shockley v. Morristown Produce & Ice Co., 171 Tenn. 591, 106 S.W.2d 562. Under our statute (Code, section 6892) "any award payable periodically for more than six months may be modifi......
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Brown v. Consolidation Coal Co.
...to the result reached in College Coal Mining Company v. Smith, 160 Tenn. 93, 21 S.W.2d 1038 (1929), and Shockley v. Morristown Produce & Ice Company, 171 Tenn. 591, 106 S.W.2d 562 (1937). Both the change in law wrought by Rule 60 and this Court's view of the necessity of accuracy in decreei......