Southern Ry. Co. v. Grigsby

Decision Date28 March 1927
Citation292 S.W. 3,155 Tenn. 285
PartiesSOUTHERN RY. CO. v. GRIGSBY.
CourtTennessee Supreme Court

Appeal in Error from Circuit Court, Union County; James L. Drinnon Judge.

Proceeding under the Workmen's Compensation Act by Daisy L. Grigsby for the death of her husband, Robert L. Grigsby, opposed by the Southern Railway Company, employer. Judgment for claimant, and the employer appeals in error. Affirmed.

SWIGGART J.

This is a suit under the workmen's compensation statute (chapter 123 of the Acts of 1919) by the widow of Robert L. Grigsby killed in the service of the Southern Railway, to recover the statutory allowance for the benefit of herself and minor children. There was a judgment in her favor below, and the employer has appealed in error.

Grigsby was a brakeman and was killed in an accident out of one of the lines of the employer in the operation of a train. He met his death November 15, 1921. An administrator was appointed for his estate, and suit was brought in the District Court of the United States to recover, under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) damages for Grigsby's death. The District Court found and held that the deceased was not engaged in interstate commerce at the time of his death and not, therefore, entitled to recover under said act. The case went to the Circuit Court of Appeals, and finally to the Supreme Court of the United States, in both of which courts the conclusion of the District Court was approved.

This litigation in the federal courts involved considerable delay and the petition herein was not filed until August 7, 1925, nearly four years after the accident. The employer pleaded, among other things, section 24 of chapter 123 of the Acts of 1919, as follows:

"Be it further enacted, that the right to compensation under this act shall be forever barred unless within one year after the accident resulting in injury or death occurred the notice required by section 23 is given the employer and a claim for compensation under the provisions of this act is filed with the tribunal having jurisdiction to hear and determine the matter."

The trial judge held this plea insufficient by reason of the provisions of section 31 of the compensation statute, as follows: "Be it further enacted, that the time within which the following acts shall be performed under this act shall be limited to the following periods respectively:

(1) Actions or proceedings by an injured employé to determine or recover compensation, one (1) year after the occurrence of the injury.

(2) Actions or proceedings by dependents to determine or recover compensation, one year after the date of notice in writing given by the employer to the bureau of workshop and factory inspection of the state, stating his willingness to pay compensation when it is shown that the death is one for which compensation is payable. In case the deceased was a native of a foreign country and leaves no known dependent or dependents within the United States, it shall be the duty of the bureau of workshop and factory inspection to give written notice forthwith of said death to the consul or other representative of said foreign country residing within the state."

Subsection 3 of section 31 provides that, when an employer is in default for as much as 30 days in the payment of compensation due under any settlement or determination, proceedings to obtain judgment shall be commenced within one year after such default.

Subsection 4 of section 31 is as follows:

"In case of physical or mental incapacity, other than minority, of the injured person or his dependents to perform or cause to be performed any act required within the time in this Section specified, the period of limitation in any such case shall be extended for one year from the date when such incapacity ceases."

Section 24 of the statute contains a general limitation and purports to limit all actions brought to recover compensation to the period of one year following the date of the injury.

In the first subsection of section 31 this general limitation is repeated, in so far as it concerns actions brought by the injured employee himself. Subsection 4 of section 31 is clearly and indisputably intended as an exception to the general limitation expressed in section 24, and in subsection 1 of section 31, in favor of both the injured person himself and his dependents, in cases of physical or mental incapacity, other than minority. Also, subsection 3 of section 31 is in the nature of an exception to the general limitation, applicable in cases in which compensation is once agreed upon by the parties or determined in a proper action, and default is subsequently made by the employer in the payment.

Construed with its context, we think subsection 2 of section 31 was also intended as an exception to the general limitation of actions expressed in section 24.

The language of subsection 2 is that actions or proceedings instituted by dependents, which can only be done in case of the death of the employee, must be instituted within one year after the date on which a notice in writing is given by the employer to the bureau of workshop and factory inspection of the state, which notice shall state the willingness of the employer to pay compensation when it is shown that the death is one for which compensation is payable.

No provision of the compensation statute, or any other statute, requires the employer, in cases of industrial accidents to an employee, to file with the bureau of workshop and factory inspection a notice expressing the employer's willingness to pay compensation, if compensation is due. It is manifest, therefore, that the notice referred to in the section under consideration is a special notice required only in connection with the limitation of actions; and, if this be true, it is not material that the work in which the deceased employee was engaged at the time of his death may not have been under the supervision or control of the bureau of workshop and factory inspection.

The provision of the statute is that the action to recover or determine compensation must be brought by a dependent within one year after the date of the filing of the designated notice. The filing of the notice is the contingency or event from which limitation is to be computed. If the event does not occur, the limitation period does not begin, since there is no date from which it can be computed.

Under this construction of the language of subsection 2 of section 31, it is obvious that the designated notice is not required to be filed at all. The provision for the limitation of the action is one for the sole benefit of the employer, and he may waive it by failing to file the notice. The provision simply extends to the employer an opportunity to avail himself of the limitation of the petitioner's action by giving notice to the bureau of the accident resulting in the death of his employee, and expressing his willingness to pay compensation when it is shown that the death is one for which compensation is payable.

Ordinarily a statute of limitation provides that the limitation period shall begin to run when the action accrues, but this is not always true, as illustrated by the fourth subsection of section 31. There it must be conceded that an action for compensation, payable to one physically or mentally incapacitated, may be instituted during the continuance of the disability, in a suit brought by next friend or guardian,...

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13 cases
  • Atlantic Coast Line R. R. v. Meeks
    • United States
    • Tennessee Supreme Court
    • 9 Julio 1947
    ...would have been entitled if the cases had been tried separately. This was done with no prejudice to the defendants. In Southern R. Co. v. Grisby, 155 Tenn. 285, 292 S.W. 3, it is strongly indicated that such procedure is permissible—and Various portions of the court's charge to the jury are......
  • Atlantic Coast Line R. R. v. Meeks
    • United States
    • Tennessee Court of Appeals
    • 9 Julio 1947
    ... ... F.2d 548, 550; (2) that his duties in some way further [30 ... Tenn.App. 524] or affect interstate commerce, Patsaw v ... Kansas City Southern Ry. Co., D. C., 56 F.Supp. 897; ... Great Northern R. Co. v. Industrial Com., 245 Wis ... 375, 14 N.W.2d 152; (3) that the carrier was ... ...
  • Ogle v. Tennessee Eastman Corp.
    • United States
    • Tennessee Supreme Court
    • 29 Noviembre 1947
    ...of the employee under the Act, and which is, therefore, of consequence and importance in the administration of the Act. The rule made in the Grigsby is also in accord with the well-known rule of statutory construction that where two sections of a statute are in conflict, the latter section ......
  • Sealed Power Corp. v. Stokes
    • United States
    • Tennessee Supreme Court
    • 1 Abril 1939
    ... ... provision controls. Board of Park Com'rs v ... Nashville, 134 Tenn. 612, 185 S.W. 694; Southern R ... Co. v. Grigsby, 155 Tenn. 285, 292 S.W. 3; May Co ... v. Anderson, 156 Tenn. 216, 300 S.W. 12. Many ... authorities for this rule are ... ...
  • Request a trial to view additional results

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