Standard Sur. & Cas. Co. of New York v. Sloan

• Decision Date: 03 July 1943
• Citation: 173 S.W.2d 436,180 Tenn. 220
• Parties: STANDARD SURETY & CASUALTY CO. OF NEW YORK et al. v. SLOAN.
• Court: Tennessee Supreme Court

173 S.W.2d 436

180 Tenn. 220

STANDARD SURETY & CASUALTY CO. OF NEW YORK et al. v. SLOAN.

Supreme Court of Tennessee.

July 3, 1943

Rehearing Denied August 2, 1943.

Error to Circuit Court, Rutherford County; T. L. Coleman, Judge.

Proceeding under the Workmen's Compensation Act by Forrest Sloan claimant, opposed by Super Service Motor Freight Company employer, and Standard Surety and Casualty Company of New York, insurance carrier. To review a judgment awarding compensation for permanent partial disability, the employer and insurance carrier bring error.

Judgment reversed except as to award for medical expense and treatment which is affirmed.

Alfred B. Huddleston and Ewing Smith, both of Murfreesboro, for plaintiffs in error.

Jackson & Washington, of Murfreesboro, for defendant in error.

CHAMBLISS Justice.

A number of defenses are presented to the claim for compensation in this case, in which an award for permanent partial disability was made below. It is conceded that Sloan was an employee of Super Service Motor Freight Company and was injured in the course of his employment as the result of a collision in Fairfax, Virginia, between the truck he was driving for the appellant Company and an automobile.

However it is said for appellants, inter alias, (1) that the employer Company was engaged in interstate commerce; that the petitioner was driving its truck interstate from Nashville to New York when injured, and that the Compensation Act does not therefore apply, but this issue was foreclosed by the admissions in the answer and the finding of the trial judge unchallenged on the motion for a new trial; (2) that no written notice of his injury was given as provided by statute, and that there is no material evidence to support the finding by the trial judge of waiver of this notice; and (3) that no award should have been made since the proof showed that petitioner had suffered no loss of wages or earning power or capacity as the result of his injury, that he was earning and had been earning, as much wages or even more than before. The assignment on this ground must be sustained.

The trial judge found that the injury sustained is to the spine or vertebra, resulting in a permanent partial disability to the extent of 25 percent, but that, despite this general disability, his wage earning capacity had not been diminished; that whereas he was earning before and at the time of his injury an average of $34 per week, he is able to earn and was earning, when his petition was filed, in excess of this sum.

"The general purpose of the Compensation Acts is to provide compensation for loss of earning power or capacity sustained by workmen through injuries in industry." Schneider Vol. I, at p. 5. As said in Devine's Case, 236 Mass. 588, at page 592, 129 N.E. 414, at page 415, "The general purpose of the Workmen's Compensation Act was to substitute in cases to which it is applicable, for common law or statutory rights of action and grounds of liability, a system of money payments based upon the loss of wages by way of relief," etc. (Italics ours.) And see 71 Corpus Juris, p. 232, where it is said that, "the Compensation Acts are based on a new theory of compensation, as distinguished from previously existing theories of damages," etc., citing numerous cases. One may be physically injured and suffer damages, for which he could recover in an action of tort, but unless the injury to his person affects and diminishes his earning power, he can not recover an award under Compensation Acts.

Subsection (c) of Code Section 6878, as amended by Pub.Acts 1941, c. 90, § 5, deals with permanent partial disability and carries a schedule fixing the compensation to be paid for the loss of the various members of the body. The concluding paragraph of this subsection, as amended, reads: "In all other cases of permanent partial disability not above enumerated the compensation shall be sixty per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his partially disabled condition subject to a maximum of eighteen dollars per week. Compensation shall continue during disability, not, however, beyond three hundred weeks. (Ib.; 1927, ch. 40.)"

We have here a case of permanent partial disability as to which this paragraph applies, this being a case "not above," that is, in this subsection, "enumerated." The award provided for in such a case is "sixty per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his partially disabled condition." The measure of the award is prescribed by the language we have italicized. If there is no "difference," then there can be no award of compensation.

In Key v. Briar Hill Collieries, 167 Tenn. 229, at page 231, 68 S.W.2d 115, at page 116, construing this sub-section (c), we said:

"'The principle underlying this legislation is substitution of compensatory income for loss of earning capacity, proportioned to the loss of the contributory income earning power of the particular member or faculty injured.' Hartford Hosiery Mills v. Jernigan, 149 Tenn. 241, 259 S.W. 546, 547; American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39; Ezell v. Tipton, supra [150 Tenn. 300, 264 S.W. 355]."

In Sun Coal Co. v. Epperson, 178 Tenn. 114, 156 S.W.2d 400, we recently considered a case in which a member, the thumb, had been injured, and permanently, and an award had been made by the trial court for this partial permanent disability in the amount fixed by subsection (c) for permanent partial disability of the thumb, without regard to resultant impairment of use, or earning value. Finding that no decrease in earning power had resulted, despite the conceded permanent injury to a portion of the thumb, this Court held there could be no award of compensation for loss of wages, and reversed.

The application of this principle would seem to preclude any award in the instant case. However, the trial judge found and the record shows that the injury suffered by petitioner impaired and perhaps destroyed his capacity to perform the particular work of heavy truck driving in which he had been engaged; that he had since been performing another kind of work, at somewhat higher wages, and it is argued that because he is prevented by his injury from earning the same wages as before in the same particular employment, compensation should be awarded for such impairment of capacity. The measure of compensation is not so based by the language above quoted from the pertinent statute. Identity of the work which the petitioner is able to perform with that he formerly performed is not essential. The test is whether or not there has been a decrease in petitioner's capacity to earn wages in any line of work available to the petitioner and which he is reasonably qualified to perform. This principle is recognized in the opinion in Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 S.W.2d 84. It was found that while Sanders' injury prevented his performing the particular work he had been engaged in since he could earn wages at different and lighter work, the extent of this wage earning capacity must be ascertained and taken into account in fixing the award. The case was remanded for further proof on this point. This view is supported by the provision in this Code S...