Wm. H. Coleman Co. v. Isbell

Decision Date20 July 1929
Citation19 S.W.2d 243
PartiesWM. H. COLEMAN CO. v. ISBELL.
CourtTennessee Supreme Court

Appeal from Circuit Court, Madison County; R. B. Baptist, Judge.

Proceedings under the Workmen's Compensation Act by J. R. Isbell against the Wm. H. Coleman Company. From a judgment awarding plaintiff compensation, defendant appeals. Affirmed.

C. E. Pigford, of Jackson, for appellant.

Pearson & Hewgley, of Jackson, for appellee.

CHAMBLISS, J.

This is a compensation case. The trial judge found, as appears from his decree, that petitioner was accidentally injured, suffering the loss of an eye, while working as employee of the Coleman Company, on June 4, 1928; that he was struck in or about the eye by a knot or piece of wood with such force as to cause the loss of the sight of the eye; "that the plaintiff, during the fifty-two weeks immediately preceding the date of the said injury was at work for said defendant regularly for thirty-five weeks, that during said period of thirty-five weeks he was paid for his services the sum of $627.90." He was thereupon awarded $897, being for 50 per cent. of an average weekly wage of $17.94 for 100 weeks.

Errors urged here relate (1) to the notice, (2) to the injury, and (3) to the amount of the award. No finding of facts appears in the record, apart from the recitals in the decree, which we have above summarized.

The motion for a new trial contains no reference to notice, nor does the decree. While set up in the answer, the attention of the trial judge was not directed to any alleged error in his judgment based on the defense of failure to give the statutory notice. This was a practical waiver of this defense, and the rule here precludes consideration of matters not brought to the attention of the trial judge in the motion for a new trial.

In Jacks v. Lumber Co., 125 Tenn. at page 127, 140 S. W. 1066, 1067, it is said that "the trial courts will not be put in error upon appeal upon questions of law or fact which have not been called to their attention"; and in Bostick v. Thomas, 137 Tenn. at page 101, 191 S. W. 968, Mr. Justice Lansden said, "Everything which occurs in the progress of the trial and which must be preserved by bill of exceptions must be made the basis of a motion for new trial if complaint is made thereof upon appeal." And see Railroad v. Ray, 124 Tenn. 28, 134 S. W. 858, Ann. Cas. 1912D, 910; Woolworth Co. v. Connors, 142 Tenn. 687, 222 S. W. 1053, holding that the appellate court is confined to grounds stated in the motion for a new trial; the reason for the rule being that the trial court may have an opportunity to correct alleged errors. And see Mullins v. Stave & Lumber Co., 155 Tenn. 132, 290 S. W. 975.

However, if the point may be considered, we are convinced that it was sufficiently shown that notice was given by mail within 30 days of the accident. Testimony that the letter conveying the notice was "placed in an envelope, sealed, properly posted and dropped in the post office directed to William H. Coleman Co." makes out a prima facie case of delivery. It could not have been "properly posted" in the usual sense of this language without postage.

In Farmers' Mill Co. v. De Franco, 16 Ohio Cir. Ct. (N. S.) 182, the language used by the witnesses was that he mailed the letter. We think the court quite correctly said: "If there be given to these words the ordinary significance, it means that he put the letter in the post office and it was addressed in the usual way." So the use of the word "duly," referring to service by mail, has been treated as embracing the prepayment of postage. People v. Crane, 125 N. Y. 535, 26 N. E. 736. So the testimony of a witness that he mailed the letter is held to imply that it was deposited in the post office. Barnet v. Norton, 90 Vt. 544, 99 A. 238, and see Oregon Co. v. Otis, 100 N. Y. 446, 3 N. E. 485, 53 Am. Rep. 221.

It becomes unnecessary to pass on the question of waiver of notice.

On the merits there is material evidence to support the finding of the trial judge, and this is as far as we may inquire. This is the settled rule. Knoxville Power & Light Co. v. Barnes, 156 Tenn. 184, 299 S. W. 772; Washington County v....

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2 cases
  • Mashburn v. Ne-Hi Bottling Co., NE-HI
    • United States
    • Tennessee Supreme Court
    • April 29, 1950
    ...error which was not made a ground for motion for new trial and seasonably brought to the attention of the Trial Judge. Coleman Co. v. Isbell, 159 Tenn. 459, 19 S.W.2d 243; Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 125, 127, 140 S.W. 1066; Bostick v. Thomas, 137 Tenn. 99, 101, 19......
  • Barnard v. Binns
    • United States
    • Tennessee Court of Appeals
    • March 27, 1959
    ...bills or other expenses in connection with his wife's treatment for injuries received in this accident. As was said in Coleman Co. v. Isbell, 159 Tenn. 459, 19 S.W.2d 243, quoting from Jacks v. Williams-Robinson Lumber Co., 125 Tenn. 123, 127, 140 S.W. [46 TENNAPP 56] 'The trial courts will......

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