Shores v. Shores

• Decision Date: 22 October 1965
• Citation: 21 McCanless 96,217 Tenn. 96,395 S.W.2d 388
• Parties: , 217 Tenn. 96 Harold SHORES and Lloyd Shores d/b/a Shores Brothers and Bituminous Casualty Corporation v. Travis SHORES.
• Court: Tennessee Supreme Court

Page 388

395 S.W.2d 388

21 McCanless 96, 217 Tenn. 96

Harold SHORES and Lloyd Shores d/b/a Shores Brothers and Bituminous Casualty Corporation v. Travis SHORES.

Supreme Court of Tennessee.

Oct. 22, 1965.

Paul E. Parker, Knoxville, O'Neil, Jarvis, Parker & Williamson, Knoxville, of counsel, for plaintiff in error.

Jared Maddux, Cookeville, Maddux, Cameron & Jared, Cookeville, of counsel, for defendant in error.

BURNETT, Chief Justice.

This is a Workmen's Compensation suit in which the trial judge found in favor of the injured employee on an agreed compensation rate of $29.30 per week. He found that the employee was entitled to temporary total disability benefits for a period of twenty-six (26) weeks beginning June 7, 1964, this being the date the payment of benefits, which were paid from the date of the accident until that date, terminated. The court further awarded the defendant in error permanent partial disability benefits for two hundred sixty (260) weeks commencing December 7, 1964, based on a finding that the defendant in error had permanent partial disability to the extent of sixty-five (65%) per cent to the body as a whole.

Other awards were made which are not questioned. Exceptions were duly made; a motion for a new trial was filed and overruled; and an appeal was perfected to this Court, where very fine briefs have been filed an arguments heard, and after spending some days studying the matter we are now in a position to decide the case.

On August 12, 1963, the defendant in error was working as a bulldozer operator and logger in a wooded area, and, while operating a gasoline chain saw, a tree which he was sawing jumped its stump and this crushed the front part of his foot. As a result of this the defendant in error lost the toes and the distal ends of the metatarsal bones of his right foot. This foot was then operated on and healed to a certain extent, but it continued to break out and run, and seepage or drainage from the foot and the stump of the injured foot gives off very offensive odors. The defendant in error testified that as a result of this injury he was one hundred (100%) per cent disabled and continued to have pain, etc., as a result thereof. General practitioners who were called in as experts testified that after talking to the employee they concluded that there was an injury to the body as a whole from fifty (50%) to eighty (80%) per cent. The orthopedic specialist who treated this man after this injury testified that 'He lost actually in terms of cubic content, somewhere around 10 or 15 percent. For practically purposes he lost what amounts to the loss of his toes * * *' As a result of this disability the doctor testified that he had lost seventy-five (75%) per cent of the use of the foot and that he could now do farm work and logging work of a general nature.

The prime question presented by this suit is whether or not the employee's disability should be assessed to the foot or to the body as a whole in view of an amendment passed by the Legislature in 1963 a § 50-1007(c), T.C.A. This Section (50-1007, T.C.A.) sets out the schedule of compensation benefits for the loss of various members of the body and provides one hundred and twenty-five (125) weeks for the loss of a foot. The last paragraph of this Section (50-1007[c]) reads:

'All other cases of permanent partial disability not above enumerated shall be apportioned to the body as a whole, which shall have a value of four hundred (400) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury. Compensation for such permanent partial disability shall be subject to the same limitations as to the maximum and minimum as provided in subsection (a). The benefits provided by this paragraph shall not be awarded in any case where benefits for a specific loss is otherwise provided in this title.' (Emphasis ours.)

The last sentence, above quoted, is the 1963 amendment to this Act. Prior to this amendment in view of the language above quoted, which precedes the sentence italicized therein, the majority of decisions of this Court have reached the conclusion that if the effects of the loss of a member extend to other parts of the body and interfere with their efficiency te schedule allowance for the lost member is not exclusive. Some such cases are Plumlee v. Maryland Casualty Company, 184 Tenn. 497, 201 S.W.2d 664; Claude Henninger Co. v. Bentley, 205 Tenn. 241, 326 S.W.2d 446; McKenzie v. Campbell and Dann Mfg. Co., 209 Tenn. 475, 354 S.W.2d 440; United States Fidelity & Guaranty Co. v. Towsend, 206 Tenn. 592, 335 S.W.2d 830; Hix v. Cassetty, 186 Tenn. 343, 210 S.W.2d 481; Dickey Mfg Co. v. Moore, 208 Tenn. 576, 347 S.W.2d 493; and many others. All of these cases were rendered when the Act contained the language quoted from the Act above which immediately precedes the 1963 amendment and did not have any such provision in the Act.

Prior to the quoted language above in the Act with reference to the body as a whole clearly when there was a clean-cut loss of a member of the body the courts as a rule limited the benefits to the scheduled allowance. Some of such cases are Hooper Tire Co. v. Maneese, 164 Tenn. 51, 45 S.W.2d 1071; Coker v. Armco Drainage & Metal Products Co., 192 Tenn. 10, 236 S.W.2d 980; and others. Long before any of the quoted portion of the Act was in the Act, this Court, in the landmark case of Russell v. Virginia Bridge and Iron Co., 172 Tenn. 268, 111 S.W.2d 1027, wherein the injured man was totally and permanently disabled by his...