Swift & Co. v. Howard

• Decision Date: 12 June 1948
• Citation: 212 S.W.2d 388,186 Tenn. 584
• Parties: SWIFT & CO. v. HOWARD.
• Court: Tennessee Supreme Court

212 S.W.2d 388

186 Tenn. 584

SWIFT & CO. v. HOWARD.

Supreme Court of Tennessee.

June 12, 1948

Rehearing Denied July 17, 1948.

Error to Circuit Court, Hamilton County; L. D. Miller Judge.

Proceeding under the Workmen's Compensation Law by Robert S. Howard employee, opposed by Swift & Company, employer. To review the judgment, the employer brings error.

Affirmed.

Strang, Fletcher & Carriger, of Chattanooga, for plaintiff in error.

Frazier Roberts & Weill of Chattanooga, for defendant in error.

BURNETT Justice.

This is a compensation case brought under the Workmen's Compensation Law of Tennessee, Code, section 6851 et seq. The petitioner avers that he strained his back in lifting a side of beef on February 9, 1947, and that he 'has not been able to do any work of any kind since,' and 'that his injuries have totally and permanently disabled him from doing any work.' He also avers that these injuries arose out of and in the course of his employment.

The defendant concedes that the petitioner was employed by it on the date of the accident at a wage of $38.40 per week. It is 'denied that petitioner suffered any accident, injury or disability arising out of or in the course of his employment and further, that if petitioner in fact has or has had any disability, that the same is due to other causes; and that petitioner had refused suitable employment.'

On the hearing, the trial judge held that 'he has made out a case--90% total disability under the proof--there is no proof he could do any regular work.'

This holding effectually was that the petitioner had suffered permanent partial disability to the extent indicated. That is to say the petitioner is able to perform some labor but his capacity to perform labor of his economic value as a laborer is by reason of the accident and injury reduced below what it was at the time of injury and extending for some considerable period of time. Subsection (c) of Code Section 6878, as amended by Pub. Acts 1941, chap. 90, sec. 5 (in force on the date of the accident here claimed), 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 reads:

'In all other cases of permanent partial disability not above enumerated, the compensation shall be sixty per cent 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.'

Obviously, if the petitioner suffered an accident arising out of and in the course of his employment which disabled him to the extent of 90%, a simple mathematical calculation supports the award of $18 per week for three hundred weeks as here awarded.

The petitioner says that he was engaged in carrying beef from a railroad car into the cooler at the defendants warehouse. He says that when he stooped over lifting 175 pounds of beef from a hook in the railroad car he was injured in his back. 'Just a sharp pain come in my back. It did not hurt too awful bad the rest of the day until I went home at night and quit work.' There is no supporting evidence that he claimed any injury at the time. His Aunt, with whom he lived, supports his statement as to his suffering that night.

He returned to work the following day and after working about an hour he says his back hurt so bad he had to quit work. He then reported this fact to the defendant who sent him to a doctor. This doctor could find no evidence of any injury but did strap up his back. This gave him no relief and a day or so later he returned to this doctor who sent him to another doctor where an x-ray was made of his back. This doctor prescribed a hard bed and no bending of the back.

The x-ray pictures showed that the petitioner had a congenitally weak back known as a sacrazilation. In the opinion of the doctors such a back was more likely to be injured from strain then a normal back would be. They say tht the petitioner could have done hard work for years and not known that his back was more easily injured than a normal back; that a 'very frequent' cause of pain and disability is 'excessive body bending or strain and lifting heavy objects.' The petitioner was advised to form a habit of stooping or squatting when he lifted things rather than bending his back. One doctor said: 'For the type of work he was doing I felt he was disabled.' It was also said that he would likely have some pain permanently unless he had a corrective operation. Such an operation is considered a major operation but is rarely fatal.

The petitioner has no trade or profession. Prior to his employment by the defendant he worked on a farm and at logging and saw-milling. He served in the United States Infantry for three years and was injured in battle for which injury he receives a pension on a 30% disability basis. This injury has no connection with the back injury here claimed. While working for the defendant his work was satisfactory. He says that he has tried to work since the accident herein complained of but cannot do so.

It is very forcibly, earnestly and sincerely argued that there was no accident; that 'petitioner merely has a congenital defect'; and that the testimony of the petitioner 'is manifestly untrue and incredible, and is contradicted by physical facts, and is without evidentiary value----'.

This argument and the assignments based thereon obviously largely assail the determination of the preponderance of the evidence by the trial judge. 'The preponderance of the evidence is not an open question in this Court, which is bound by the finding of the trial judge in that regard, if there was any material evidence to support it.' Anderson v. Volz Const. Co., 183 Tenn. 169, 175, 191 S.W.2d 436, 438. We do not reweigh the evidence nor do we attempt to see where the preponderance lies. The preponderance of the evidence might be against the finding of the trial judge yet if there is material evidence to support his finding we must affirm on this score. Vester Gas Range Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395. 'The weight of evidence and the credibility of the witness are finally determined in the trial court.' Anderson v. Volz etc., supra. We must also remember that 'circumstantial evidence may support a finding of fact or an award in workmen's compensation proceeding, and a finding or award may be based on inference drawn from circumstantial evidence.' 2nd Head note, Riley v Knoxville Iron...