Vester Gas Range & Mfg. Co. v. Leonard

• Decision Date: 23 December 1923
• Citation: 257 S.W. 395,148 Tenn. 665
• Parties: VESTER GAS RANGE & MFG. CO. v. LEONARD.
• Court: Tennessee Supreme Court

257 S.W. 395

148 Tenn. 665

VESTER GAS RANGE & MFG. CO. v. LEONARD.

Supreme Court of Tennessee.

December 23, 1923

Error to Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Suit under the Workmen's Compensation Act by Taylor Leonard against the Vester Gas Range & Manufacturing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Rankin Frazier & Roberts, of Chattanooga, for plaintiff in error.

H. A Blackwill, of Chattanooga, for defendant in error.

HALL J.

The petition in this case was filed in the circuit court of Hamilton county by Taylor Leonard, who will hereinafter be referred to as petitioner, against Vester Gas Range & Manufacturing Company, who will hereinafter be referred to as defendant, to recover compensation for an alleged injury sustained by petitioner while in the employ of the defendant who was operating under the workmen's compensation statute (Acts 1919, c. 123), which injury, the petition alleges, arose out of and in the course of petitioner's employment on December 10, 1921.

Defendant answered the petition, denying that petitioner sustained any injury whatsoever while in the employ of defendant, and averred that petitioner's disability was caused from a disease which had no connection with his employment, and for which defendant was in no way responsible.

The answer further averred that, while defendant refused to recognize its liability to petitioner for compensation for his alleged injury, it did, on March 11, 1922, pay petitioner the sum of $97.50, in full settlement of his alleged claim, and that he accepted this sum in full satisfaction thereof, and signed a regular compensation receipt acquitting defendant of further liability to him for compensation.

The answer also set up a further defense to petitioner's claim that there was a failure on the part of petitioner to give defendant notice of the accident and injury, as required by section 22 of the workmen's compensation statute, and that therefore on this further ground petitioner's claim for compensation was barred.

To defendant's answer petitioner filed a replication, in which it was averred that, in about 10 days after he sustained the injury complained of, he orally reported his injury to defendant's foreman, who made a memorandum of his injury, and sent petitioner to defendant's physician, Dr. J. B. Haskins, for treatment, and thereafter petitioner was sent to Mr. Roberts, who represented the Mutual Liability Insurance Company, with which company defendant was insured, and that Mr. Roberts, as agent of the insurance company, paid to petitioner the sum of $97.50, which sum was in settlement for 13 weeks' compensation, to which petitioner was entitled under the workmen's compensation statute; that said payment covered compensation due from defendant to petitioner from December 10, 1921, to March 4, 1922, at the rate of $7.50 per week; that petitioner did sign a written release to defendant for said sum, but did not know that he was signing a release in full settlement for compensation and acquitting defendant of further liability; that said settlement was not binding upon petitioner, because it was not approved by the judge of the circuit court, as required by section 27 of the workmen's compensation statute.

The case was heard by the circuit judge upon the pleadings and proof, and a judgment was rendered against defendant and in favor of petitioner for the sum of $7.50 per week from March 4, 1922, during the period of his disability from said injury, but, however, not to exceed 300 weeks, less the sum of $97.50, previously paid to petitioner by defendant, which sum the court ordered to be credited on and deducted from the recovery awarded. The judgment further provided that the amount awarded might be modified on future application by defendant to the court on the ground of any decrease in petitioner's disability.

From this judgment defendant has appealed to this court and assigned errors. While there are a number of specifications of error assigned, counsel for defendant expressly state in their brief that they only present the following propositions:

"First. There is no material proof that the plaintiff received an accidental injury arising out of and in the scope of his employment with the defendant.

Second. That the court arbitrarily disregarded the great preponderance of the evidence in holding plaintiff's disability the result of an accident, instead of a disease.

Third. That section 27 of chapter 123, Acts 1919, is violative of article 1, section 8, and article 1, section 21, of the Constitution of Tennessee, in so far as it requires all settlements of compensation claims to be approved by the circuit court before they are binding.

Fourth. That the plaintiff did not give any written notice of the injury."

Petitioner was receiving from defendant a wage of $15 per week for his work, and on the trial he offered evidence which tended to show that on December 10, 1921, while in the employ of defendant, he and two other employees were engaged in loading stoves into a freight car for the purpose of shipment, and that while lifting one of the stoves being loaded up on some other stoves in the car, and at a time when petitioner and his fellow employees had lifted said stove to a position where it was above petitioner's head, his fellow employees released their hold on the stove, which weighed about 200 pounds, and let the full weight of same down on petitioner, which caused him to be thrown against the side of the car, whereby he sustained a severe strain or injury to his back and side in the region of his kidneys; that after he received said injury he felt sick and faint, but on going out and getting some fresh air he felt better and continued to work at his employment; that about an hour after he received this strain, on account of the falling of the stove upon him, he was put to work by his employer at rolling a wheelbarrow filled with green concrete along a plank, which was elevated about two feet from the ground for the purpose of dumping the concrete in a form which defendant was using in building an addition to its plant; that while thus rolling said wheelbarrow along said plank it became overbalanced, turned over, and threw petitioner off of said plank to the ground, whereby he sustained another strain or injury to his back and side; that this was just about quitting time in the afternoon; that after petitioner's work hours had ceased he started to his home, but experienced great difficulty in getting home, owing to the severe pain which resulted from his injury; that within 30 minutes after he received the last injury he began to pass blood in his urine. On reaching home petitioner says that he went to bed, where he was confined from his injury for a period of about 10 days. Upon becoming able to get out he returned to defendant's plant and reported his injury to defendant's foreman, Mr. Frye. He says that Mr. Frye made out a report of his injury and then sent him to defendant's physician, Dr. Haskins, who treated him for a strained back; that this treatment consisted of bandaging his...