Tipton v. North American Rayon Corp.

Decision Date01 July 1944
Citation181 S.W.2d 619,181 Tenn. 434
PartiesTIPTON v. NORTH AMERICAN RAYON CORPORATION.
CourtTennessee Supreme Court

Appeal from Chancery Court, Carter County; S.E. Miller, Chancellor.

Proceeding under the Workmen's Compensation Act by Bascom Tipton employee, against the North American Rayon Corporation employer, for total disability compensation. From a judgment awarding compensation, the employer appeals.

Affirmed.

J. H Hodges, of Knoxville, for defendant-appellant.

PREWITT Justice.

This is a compensation suit in which the chancellor, after a full hearing, awarded the petitioner, Bascom Tipton, compensation for temporary total disability for a period of twenty-seven and three-sevenths weeks at $18 per week, amounting to the sum of $493.71. There was a motion for a new trial which was overruled and this appeal resulted.

The defendant, North American Rayon Corporation, insists: First that the proof is at material variance with the petition; and second, that there is no material evidence to sustain the award.

It is insisted under the first proposition that the petitioner averred that he was injured as the result of a life or pull, while he testified that when he took hold of his car and stooped over some of the boys pushed their cars and knocked him over. The petitioner was employed as a spinner in the defendant's plant, and the variance complained of is the slight variance between the averment that he was hurt in the act of pushing his truck, while he testified that he was hurt while in the act of taking hold of his truck by another truck being pushed into him.

The defendant relies upon this proposition on the case of Phillips v. Diamond Coal Min. Co., 175 Tenn. 191, 133 S.W.2d 476, in which this Court held that the chancellor properly excluded testimony concerning an injury not alleged in the petition. The Court further held that in a compensation proceeding the petition should state the nature of the injury so as to advise the employer of the nature of the claim and enable him to prepare to meet it.

In that case the Court also held that under the allegations of the petition Phillips was only entitled to compensation for the loss of a leg. No other injury was alleged, but Phillips offered to prove an injury to his back, a paralysis of the muscles of the abdominal wall, injury to the sacroiliac joints, and serious impairment of the nervous system, which injuries, in conjunction with the loss of the leg, caused him to be totally permanently disabled. Objection was timely made to showing any injuries other than to the leg and was sustained by the chancellor. This Court affirmed the decree of the chancellor on the ground that the attempted proof of other material injuries was properly excluded.

We have no such case here. In the instant cause the variance was slight and inconsequential. We think the defendant was fully put on notice as to the injury received.

This brings us to the second proposition that there is no material evidence to support the findings of the chancellor. The chancellor filed a written memorandum stating that he was much impressed by the testimony of Tipton and the truthfulness of his statement to the effect that he was struck in the back by a car or truck during the course of his employment as a spinner in the service of the defendant. Other witnesses corroborated the petitioner to the effect that immediately thereafter he was suffering excruciating pain, and the proof further shows that he suffered from this injury for the full time covered by the award.

The testimony of the defendant consisted of evidence given by four physicians to the effect that the petitioner's...

To continue reading

Request your trial
5 cases
  • Benjamin F. Shaw Co. v. Musgrave
    • United States
    • Tennessee Supreme Court
    • July 2, 1949
    ... ... 287, 198 S.W.2d 639; ... Sanders v. Blue Ridge Glass Corp., 161 Tenn. 535, 33 ... S.W.2d 84. When it comes to the ... Gravitt, 182 Tenn. 54, 184 ... S.W.2d 164; Tipton v. North American Rayon Corp., ... 181 Tenn. 434, 181 ... ...
  • Anderson v. Volz Const. Co.
    • United States
    • Tennessee Supreme Court
    • January 7, 1946
    ...to support it. Templeton v. Wilson, 174 Tenn. 65, 68, 123 S.W.2d 824; Tennessee Products Corporation v. Gravitt, supra; Tipton v. N. A. Rayon Corp., supra. assignment contains an allegation that the judgment was 'contrary to the law.' No error of law is suggested or specified. The assignmen......
  • Lee v. Aluminum Co.
    • United States
    • Tennessee Supreme Court
    • January 11, 1947
    ... ... appeal. Tipton v. North American Rayon Corp., 181 ... Tenn. 434, 181 ... ...
  • Tidwell v. F. W. Woolworth Co.
    • United States
    • Tennessee Supreme Court
    • June 26, 1947
    ...there is any material evidence to sustain it. Hedges-Walsh-Weidner Co. v. Haley, 165 Tenn. 486, 55 S.W.2d 775; Tipton v. North American Rayon Corp., 181 Tenn. 434, 181 S.W. 2d 619. Compensation cases are not tried de novo in this Court. In the case before us there is an abundance of compete......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT