Smith v. Lincoln Memorial University
Decision Date | 07 June 1957 |
Citation | 202 Tenn. 238,304 S.W.2d 70,6 McCanless 238 |
Parties | , 202 Tenn. 238 Frank SMITH v. LINCOLN MEMORIAL UNIVERSITY. |
Court | Tennessee Supreme Court |
J. R. Ketron and A. G. Shumate, Tazewell, for appellant, Lincoln Memorial University.
Hodges & Doughty, Knoxville, for appellee, Smith.
This is a Workmen's Compensation case under Section 50-901 et seq., T.C.A. The Chancellor granted compensation to the employee for 50% loss of the use of his right leg. The University has appealed and presents two questions to this Court, to wit:
(1) Lincoln Memorial University being a charitable educational institution, and not being operated for a profit is not within the provisions of the Workmen's Compensation Law, and,
(2) If the University is liable under the Workmen's Compensation Act then the employee was a casual and not a regular employee.
These questions have been seasonably presented by counsel and able briefs. We have made an extensive study of the matter and now have the case for disposition.
The University at all times during 1955, the year that this accident happened, had in its employ more than five persons. The petitioner was a man 62 years of age and had been a resident of Claiborne County, residing in Harrogate, Tennessee for that time. His occupation was that of a farmer and of painting and carpentry work. He had been doing painting and carpentry work and farming all of his life. He began working for the University on July 5, 1955 and was working in painting the gymnasium and swimming pool on October 7, 1955 (he had been working continuously since his employment in July) when he was directed to go from one place on the school grounds to do additional painting at another place, and in doing so, while carrying five paint buckets, his foot slipped and his leg doubled back under him injuring his right knee.
He had been working this way during the season for such work, during painting season, for the University for the past 37 years. The University had a maintenance department that did paint work and other general repairs in the upkeep of its buildings and dormitories. Most of the outside painting was done during the summer and fall months.
The School also maintained certain apartment buildings which they rented to the teachers of the School and three or four of these buildings had been dwelling houses that were rented to teachers. The employee sometimes worked on these rental buildings and apartments and he painted one of the apartment buildings about two days before he fell. This maintenance crew that maintained these school buildings was in charge of a foreman who was employed by the School who in turn had a Mr. Owens in charge of the painters.
Lincoln Memorial University is a charitable educational institution operating under a welfare charter. It gives general courses of instructions as other colleges and universities in its class do in this State.
It is very ably argued on behalf of the University that since it is an eleemosynary institution that it was not the intention of the Legislature to include it or eleemosynary institutions of the kind within the provisions of the Workmen's Compensation Statute. The argument is based upon the fact that it is said that we in Tennessee have adopted the Trust Doctrine exempting charitable institutions from liability upon the theory that gifts for such charitable purposes should be encouraged by every reasonable means and thus these gifts should not go for things not necessarily included in an educational system. The case of Gamble v. Vanderbilt University, 138 Tenn. 616, 200 S.W. 510, L.R.A.1918C, 875, sets forth this Trust Doctrine and this doctrine is said to be well entrenched in our judicial system. It is said that by reason of this fact the need for educated men and women has become greater year by year and since it was great at the time the case of Gamble v. Vanderbilt University was decided that it is far greater now. The argument likewise is that it is a matter of common knowledge and the courts will take judicial notice of the fact that colleges and other charitable institutions are in more need of support and philanthropically minded people now than ever before and that the safety and welfare of this country depend more and more upon college trained men and women.
In our determination of this question and whether or not the Legislature did intend to exempt eleemosynary institutions, it is necessary for us to look at the provisions of the statute enacting the Workmen's Compensation Law into the law of this State. Section 50-902, subsection (a), T.C.A., defines an employer as:
This section obviously does not make an exemption in favor of an eleemosynary institution. Under the facts here we have a university employing more than five persons each during the summer and fall months in painting and doing general repair work around the buildings.
Section 50-903, T.C.A., provides:
'Every employer and every employee except as herein stated, shall be presumed to have accepted the provisions of the Workmen's Compensation Law respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound, thereby, unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.'
This Section has reference to employers included within the statute and not to such as are expressly exempt from the Statute by Code Section 50-906, T.C.A., hereinafter to be referred to. Bohannon v. Putnam County, 157 Tenn. 170, 7 S.W.2d 58.
Those that are not covered, that is the employments that are not covered, are as set out in Section 50-906, T.C.A., any common carrier, any person whose employment is casual, domestic servants and employers thereof, and in cases where there are less than five persons with exceptions as provided in the Act and lastly State of Tennessee and counties and municipal corporations with certain provisions. In none of these excepted employments and employers is an eleemosynary institution, such as the appellant herein.
It seems plain to us that under the first Code Section quoted above that the University here is an employer, and then in view of the following section which is quoted it is provided that every employer is presumed to have accepted the provisions of the Act unless they give notice otherwise as provided by law of electing not to come under the Act. No election was exercised by the University.
It seems to us that the maxim, expressio unius est exclusio alterius, is applicable here. This maxim embodies a useful rule of construction, and is frequently employed to determine the real purview of legislative enactments.
Numerous cases applying this maxim will be found in 35 C.J.S., at page 283, and 284. It is said among other things that:
It seems to us if we apply the common-sense logic of this maxim that we must conclude that if the Legislature intended to exclude eleemosynary institutions from the workings of the Workmen's Compensation Law then they would have said so. When by giving the definition of an 'employer', as they...
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