Ward v. North Am. Rayon Corp.

• Decision Date: 13 March 1963
• Citation: 211 Tenn. 535,366 S.W.2d 134,15 McCanless 535
• Parties: , 211 Tenn. 535 Jady WARD, Petitioner, v. NORTH AMERICAN RAYON CORPORATION and Liberty Mutual Insurance Co., Respondents.
• Court: Tennessee Supreme Court

Page 134

366 S.W.2d 134

15 McCanless 535, 211 Tenn. 535

Jady WARD, Petitioner, v. NORTH AMERICAN RAYON CORPORATION and Liberty Mutual Insurance Co., Respondents.

Supreme Court of Tennessee.

March 13, 1963.

Allen, Nelson & Bowers, Elizabethton, for petitioner.

Simmonds, Bowman & Herndon, Johnson City, for respondents.

FELTS, Justice.

This was a workmen's compensation suit brought in the Chancery Court by complainant Ward against defendants North American Rayon Corporation and its insurance carrier, to recover compensation for permanent total disability alleged to have been caused him by accident and by occupational disease arising out of and in the course of his employment.

The Chancellor found complainant had sustained a 50% permanent partial disability to the body as a whole, and awarded him $32 per week for 200 weeks, together with all his medical and hospital expenses. Defendants filed a motion for a new trial, which was overruled, and they prayed and were granted an appeal in the nature of a writ of error, but failed to execute an appeal bond within the time allowed by law.

But defendants filed a duly certified copy of the transcript of the record, a petition for writ of error, accompanied by assignments of error, a cost bond, and a supersedeas bond. All this having been done within less than a year from the entry of the final judgment, the writ issued as a matter of right. T.C.A. §§ 27-601, 27-602, 27-604. Cockrill v. Peoples Savings Bank, 155 Tenn. 342, 347, 293 S.W. 996; State for the Use & Benefit of Lawrence County v. Hobbs, 194 Tenn. 323, 329, 250 S.W.2d 549.

Respondent Ward has filed a motion to strike the petition for writ of error and to dismiss the writ, asserting as grounds therefor that since plaintiffs in error undertook to appeal this cause and did file an appeal bond, but too late, and since the record does not show they have abandoned the appeal, they are not entitled to a writ of error; that appeal and writ of error are alternative remedies and a party may not resort to both.

This motion is without merit and is overruled. It is true that a party is not entitled to have his case reviewed twice by the appellate court; that an appeal or an appeal in the nature of a writ of error is an alternative remedy to a writ of error; but a writ of error lies as a matter of right from a final judgment in all cases where an appeal in the nature of a writ of error would have lain. T.C.A. 27-601, 27-602, 27-604, 27-605.

Where an appeal or an appeal in the nature of a writ of error was not perfected because of failure to file an appeal bond in due time, a writ of error lies as a matter of right. Crowe v. Birmingham & N. W. Ray. Co., 156 Tenn. 349, 352, 1 S.W.2d 781; Burcham v. Carbide & Carbon Chemicals Corp., 188 Tenn. 592, 221 S.W.2d 888.

And even where a party 'perfected his appeal to this Court by filing a pauper's oath,' but failed to bring up a transcript of the record, and later a consent decree was entered in the lower court permitting him 'to withdraw said appeal,' we held that he still had a right to a writ of error. Burcham v. Carbide & Carbon Chemicals Corp., supra. See also, State for the Use & Benefit of Lawrence County v. Hobbs, supra; Ragsdale v. Hill, 37 Tenn.App. 671, 681, 269 S.W.2d 911.

This brings us to the merits of the case. Defendants below, plaintiffs in error here, through a number of assignments of error, insist that the Chancellor erred in finding and decreeing that Ward had sustained a disability of 50%, or to any extent, by accident or by occupational disease arising out of and in the course of his employment; and that there is no material evidence to support the Chancellor's findings and decree.

It appears that plaintiff in error North American Rayon Corporation operates a large plant in Carter County Tennessee where it employs numerous employees in the production of rayon. Complainant Ward was employed in this plant as a helper to a pipe fitter. His duties were to pick up insulation, asbestos and cork, which was in pieces, each weighing about 5 pounds, unroll them, and hand them up to the pipe fitter who was working on a ladder. This work required Ward to step up several rungs on the ladder in handing up the pieces, and the unrolling of the asbestos released dust which was inhaled by Ward.

On September 4, 1959, while doing this work, he became ill, coughing or spitting up blood. His foreman sent him to the first aid department of the plant where he saw a nurse and the plant doctor. He said he told the doctor he was nervous, sick at his stomach, and had spit up blood; and that he was 'broke down with poison.' The doctor gave him a note to his foreman suggesting that he be taken off the work of handling insulation and given other work, and told him to report back in a day or two if he did not feel better.

He returned to work, was put upon another job, did not report back to the doctor, but continued to work until September 21, 1959, at which time the Company, owing to the slackness in the rayon market, found it necessary to reduce its work force, and laid off 17 employees, including complainant Ward. Though there is some contention to the contrary, it appears that there was no relation between Ward's sickness on September 4th and the lay-off of him with the others September 21st. In laying off the men, preference was given to seniority, as provided in the contract of employment with their bargaining agent.

He testified that from September on, he suffered from a multiplicity of ills and pains; his chest hurt him; and he spat up blood; his neck pained him in the area of the cervical spine, and his right arm and shoulder pained him and at times is paralyzed and useless; his lower back hurts him and his hip is out of joint and his leg hurts. He was alos highly nervous and had difficulty in sleeping and in walking. He suffered from shortness of breath, loss of appetite, weight, and energy.

He also testified that at various places in the shop where he worked there were chemicals, paints, gases and fumes to which he was exposed, and that he lost the sight of his left eye when he was sprayed with a chemical, which loss, however, had happened more than a year before, and no claim was made or suit brought on account of that injury. He also said that, in handling the insulation and asbestos, he inhaled dust and suffered from shortness of breath and spitting up blood.

He further said that on September 4th, he became ill while handling the insulation (asbestos and cork), and taking it up the rungs of the ladder to the pipe fitter; and he attributes most of his injuries to the strain of this exertion. He also thought he may have injured his hip sometime before that (he does not remember the date), when he and another man carried a 200 pound box of insulation up five stories.

He testified that from September 4th on, he dragged himself to work day after day, with his neck, his chest, his hip, his lower back, and his leg hurting him, and suffering from shortness of breath; that he did not report back to Dr. Pearson at the first aid station of the plant, because the doctor had not given him any treatment, and he did not see any use in going back.

He said that while he was suffering from all these ills and injuries, he did not know the nature or seriousness of his troubles until about a month after he was laid off, when he went to see Dr. Stine, a chiropractor, and then he learned for the first time the nature of his injuries. Ward testified that he was totally and permanently disabled. He introduced his wife, Mrs. Ward, as a witness, who supported his testimony as to his being in pain and bad health. She also stated that he had lost his ability to be a man and a husband to her.

His other witness was Dr. Stine, a chiropractor. Dr. Stine testified that he had examined Ward on October 24, 1959, and had made Neurocalometer readings and X-rays of his spine. He said the Neurocalometer readings showed several points of nerve interference in his spine, and X-rays revealed a subluxation of the Atlas and Axis vertebrae; that there was an abnormal curvature in the middorsal region (which could contribute to his digestive disturbance) and a nerve spasm at the base of the skull. The nerve pressure in the spine could have caused Ward to be nervous.

He also testified that Ward's lifting five-pound batches of asbestos up three rungs of the ladder would tend to dislocate his hip, his shoulder, his neck, and cause him to spit up blood. Dr. Stine also said that since Ward had complained about his lungs and shortness of breath, and had spit up blood, he thought Ward might have silicosis, an occupational disease. So, he sent Ward to an X-ray doctor, who reported that Ward's lungs were negative. Dr. Stine admitted he was not an expert on silicosis and could not treat diseases.

Defendants introduced Dr. Ben Hall, a practicing physician, specializing in internal medicine, and a Diplomate of the American Board of Internal Medicine and a Fellow of the American College of Physicians. He had examined Ward February 8, 1960, sometime after this suit was brought at the request of defendants. He testified that, inasmuch as Ward gave a history of a multiplicity of symptoms referable to almost every organ and system in the body, he made a thorough and extensive examination of him.

Dr. Hall found no abnormalities except some skin blemishes; the nerves, kidneys and heart appeared normal. The X-rays also appeared normal. Dr. Hall could find no evidence of any disease, and stated 'with considerable certainty' that there was no evidence of carbon disulphide poisoning, pulmonary lung injury due to inhalation of noxious fumes. In short, Dr. Hall found nothing wrong with Ward except that he did appear to be nervous.

Defendants also called as their witness Dr. Hankins, a specialist in radiology. He examined the X-rays that had been made by Dr. Stine, and interpreted them. He said they showed the...