Threet v. Cox

• Decision Date: 17 December 1949
• Citation: 25 Beeler 477,189 Tenn. 477,226 S.W.2d 86
• Parties: , 189 Tenn. 477 THREET v. COX.
• Court: Tennessee Supreme Court

Page 86

226 S.W.2d 86

25 Beeler 477, 189 Tenn. 477

THREET v.COX.

Supreme Court of Tennessee.

Dec. 17, 1949.

Rehearing Denied Feb. 10, 1950.

Harry G. Sabine, Crossville, for plaintiff in error.

Tollett & Tollett, Crossville, for defendant in error.

GAILOR, Justice.

This is a proceeding under the Workmen's Compensation Act, Williams' Code, Sec. 6851 et seq.Threet sued Cox for back injuries sustained while working for Cox as a coal miner.After hearing the proof the Trial Judge took the case under advisement and finally made a written finding of fact in which he dismissed the petition on the ground that the defendant was not subject to the provisions of the Workmen's Compensation Act because he did not employ the five employees required as a minimum under the Act.The pertinent part of the finding of the Trial Judge is as follows:

'* * * the Court finds that the defendant was not subject to the provisions of the Workmen's compensation laws of the State of Tennessee, at the time the petitioner was injured while working in the mines of the defendant in that the defendant had only been operating said mines for a period of three weeks prior to the plaintiff's injury, and during said period of time which it operated said mines it did not have five or more regular employees working for it in the operation of said mines, and the plaintiff could not maintain his suit under the Workmen's Compensation Law; that the employees working for Lawrence D. Cox, at his saw mill which was the regular business of the said Lawrence D. Cox, could not be added to or taken under consideration in determining the number of regular employees working for the defendant at the mines at the time of the injury to the petitioner in said mines, which said saw mill business was separate and distinct from the operation of said mines, and in no way connected therewith, and the Court disallows the insistence of the petitioner, that the employees at the mill should be counted in ascertaining the number of the employees at the mines, because said saw mill employees were not regular employees of the defendant at its mines and said two businesses were maintained and operated in a different separate and distinct manner and neither operation was connected with or had any relationship to the other.'

The Trial Court then dismissed the petition and the plaintiff has appealed, making five assignments of error.Since the last four of the assignments of error assert that the decision of the Trial Judge was against the preponderance of the evidence and would have this Court re-weigh that evidence to change the judgment, they are not for our review.In the Supreme Court, in cases rising under this statute, the finding of the Trial Judge is conclusive on questions of fact, though the preponderance of the evidence be against the finding.Vester Gas Range Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395.If the finding of the Trial Judge is supported by any material evidence, it must be affirmed.Hedges-Walsh-Weidner Co. v. Haley, 165 Tenn. 486, 55 S.W.2d 775;Liberty Mut. Ins. Co. v. Maxwell, 164 Tenn. 1, 46 S.W.2d 67;Cantrell Co. v. Goosie, 148 Tenn. 282, 255 S.W. 360;Milne v Sanders, 143 Tenn. 602, 228 S.W. 702;Washington County v. Evans, 156 Tenn. 197, 299 S.W. 780;Cambria Coal Co. v. Ault, 166 Tenn. 567, 64 S.W.2d 18;...