Ware v. Illinois Cent. Ry. Co.

• Court: Tennessee Supreme Court
• Writing for the Court: CHAMBLISS, J.
• Citation: Ware v. Illinois Cent. Ry. Co., 281 S.W. 927, 153 Tenn. 144 (Tenn. 1926)
• Decision Date: 27 March 1926
• Parties: WARE v. ILLINOIS CENT. RY. CO.

281 S.W. 927

153 Tenn. 144

WARE v. ILLINOIS CENT. RY. CO.

Supreme Court of Tennessee.

March 27, 1926

Appeal from Circuit Court, Shelby County; H. W. Laughlin, Judge.

Proceeding under the Workman's Compensation Act by L. M. Ware employee, opposed by the Illinois Central Railway Company employer. From a judgment in favor of the employer petitioner appeals. Reversed and remanded.

Chas. L. Neely, of Memphis, for appellant.

Sivley, Evans & McCadden, H. D. Minor, Chas. N. Burch, and J. P. M. Hammer, all of Memphis, for appellee.

CHAMBLISS J.

This petitioner for compensation was found by the trial judge to have suffered, in the month of August, 1923, while in the employ of the defendant, an injury which resulted in the amputation, in March following, of the middle finger of the right hand. The finding further was that defendant's foreman, under whom petitioner worked, was informed of the accident at the time and directed petitioner to an office porter in charge of first aid remedies, who, in performance of his customary duty, gave the wound antiseptic treatment and wrapped it; that neither the petitioner, nor apparently the representatives of the company, who examined the injury and treated it, regarded it at the time as serious, and petitioner resumed work and continued to work for the defendant, with more or less regularity, until January following, meanwhile experiencing more or less inconvenience, pain, and discomfort, of which he made no further report, still believing that his injury was slight and only temporary.

After quitting in January the employ of defendant, he did some other work, but was finally, in the month of February, forced to go to the hospital for treatment, with the result already stated. It was further found that:

"The finger and hand were so badly infected that it resulted in ankilosis of the hand to such an extent that the court finds from the testimony of experts that plaintiff has sustained at least a 65 per cent. permanent partial disability of his right hand;" and, "that the condition * * * was caused by the injury to said finger in August, 1923, as aforesaid."

No written notice was given the defendant until in April after the amputation. The judgment of the court was that petitioner could not recover because of his failure to give written notice within 30 days, not of the accident, but of the development of the seriousness of the injury; this conclusion being thus stated:

"The court is of opinion that no written notice was necessary until real injury resulted to plaintiff on account of said original injury. This did not occur until February 29, 1924. Written notice was absolutely necessary to a recovery by plaintiff after the original injury developed into a serious and disabling one on the 3d and 4th days of March, 1924. Plaintiff did not even give written notice within 30 days after he left the hospital on the 9th of March; and, not having given such notice, the court is of opinion that plaintiff is not entitled to compensation."

On the facts found, we are of opinion that petitioner was reasonably excused from giving the notice required as a condition of recovery by the pertinent portion of section twenty-two of chapter 123, Acts of 1919, reading as follows:

"And no compensation shall be payable under the provisions of this act unless such written notice

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