*1 Co. of New York Surety Casualty et al. v. & Standard Sloan.
(Knoxville, September 1942.) Term,
Opinion July filed 1943.
Rehearing August 2, denied 1943.
2.23 Ewing Alfred B. Huddleston Mur- Smith, both of plaintiffs in freesboro, for error. & WASHINGTON, defend- Murfreesboro, for
Jackson ant in error. opinion
Me. Justice. delivered the Chambliss Court. presented
A number are of defenses to the claim for per- in which case, an award partial disability manent was made below. It is conceded employee Super that an Sloan was Service Motor Freight injured Company and was course bis employment the result of a collision in Fairfax, Vir- ginia, appellant driving be between truck was for the Company automobile. appellants, (1)
However, it is said for inter that alias, employer engaged Company was interstate com- petitioner driving merce ; its truck interstate injured, from Nashville York New when apply, Act does not therefore but this issue was foreclosed in the admissions answer and the finding unchallenged on the motion for (2) trial; a new no written notice of his *4 given provided by was as statute, no support finding by material evidence to the judge (3) of of waiver notice; award proof have peti- been should made since showed that wages earning power tioner had suffered no loss of or or capacity injury, earning as the result of his he was
224 wages tban earning, even more mncb or as been
and bad ground assignment be must sus- on this Tbe before. tained. injury tbe sustained is found that
Tbe trial partial resulting permanent spine ain vertebra, or tbe despite percent, disability that, tbe extent of 25 but earning wage capacity disability, been general bad not bis earning at be before and was diminished; that whereas average injury per of be is week, an $34 tbe of bis petition earning, filed, was earn and when bis able to of this sum. excess “ purpose Compensation general Acts of tbe Tbe power provide earning* or for of loss is to injuries through, capacity by'workmen in sustained p. dustry.” in Devine’s at I,Vol. 5. Schneider As said page page 414, N. at Mass., 129 Case, 588, 502, E., general purpose tbe Com “Tbe of Workmen’s 415, pensation it Act substitute cases to which was to rights applicable, statutory of for law common or liability, money pay grounds system action and ’’ upon wages way relief, etc. based the loss ments (Italics ours.) p. Corpus it where Juris, And see 232, new are based on a that, “tbe said Acts distinguished previ theory compensation, from ’’ citing ously existing damages, etc., theories of numerous may damages, injured physically be cases. One and suffer be but un tort, could recover in action of which an person less tbe bis to bis affects and diminishes earning power, be can recover award under Com pensation Acts. (c) 6878,
Subsection Code Section as amended chap. permanent Pub. Acts deals with 90', sec. 5, partial fixing disability tbe a schedule carries
225 compensation paid for to be of the mem- loss various body. concluding paragraph The bers of the of this sub- amended, reads: section, as permanent partial disability
“In all other cases per sixty above enumerated shall be wage centum of the difference between the of the work- injury wage man at the time of the he is able to partially subject earn in his disabled condition maxi- to a eighteen per mum of dollars week. shall during disability, beyond continue however, not, three ” (Ib.; chap. 40.) hundred weeks. 1927, permanent partial We have here a disability case of paragraph applies, being to which this case “not a above,” is, “enumerated.” subsection, “ provided sixty per award a such case, centum of ivage between the the workman at the difference wage and the he able earn in his partially disabled condition.” The measure of award prescribed by language have we If italicized. then “difference,” there can be no award of com pensation. Key
In
v. Briar Hill
167
Collieries,
Tenn., 229,
page
(2d),
page
construing
at
231, 68 S. W.
115,
116,
(c),
this sub-section
we said:
“
principle underlying
legislation
‘The
is sub-
compensatory
stitution
earning
income for
loss
capacity, proportioned
contributory
to the
loss
earning power
particular
income
member or
faculty injured.’
Jernigan,
Hosiery
v.
Mills
Hartford
149 Tenn.,
259 W.,
S.
241,
546,
American
547;
Zinc Co. v.
Tipton, supra
Lusk,
In Sun Coal Co. (2d), recently considered a which mem we case permanently, injured, been ber, thumb, had by the court been made for this award had permanent disability partial in the amount fixed *6 partial permanent disability (c) subsection for regard impairment to resultant of use, without thumb, Finding earning earning value. that decrease in or power despite permanent had the conceded resulted, portion injury a the to of Court held thumb, this compensation wages, be no award of for could loss and reversed. principle application to this seem would
preclude any award in case. the However, the instant injury and the that the found record shows by impaired petitioner perhaps destroyed and suffered capacity perform particular heavy to the work of his driving engaged; in been truck which he had that he had performing* since another kind work, been at some higher argued wages, it what is because he is prevented by injury earning wages from his same particular employment, compensa in the as before same impairment capacity. tion should be for -awarded such by The measure of not is so based quoted pertinent language above from the statute. Identity petitioner per of the work which able is to performed formerly form that he with not is essential. The test is whether or not there been decrease in has petitioner’s capacity wag’es any to in earn line work petitioner reasonably available to the and which he is qualified perform. principle recognized to This in opinion Ridge Corp., v. Blue Sanders Glass (2d), Tenn., 535, 33 S. 84. It W. was found while
227' Ms prevented performing particu- Sanders’ lar had he work he been since engaged could earn wages lighter different the extent work, wage he earning capacity must ascertained and taken into account in The case award. was remanded fixing for further proof on This point. supported view is provision in Code Section, 6878', subsection “If an (c), that, injured employee refuses employment suitable to his or capacity, him, offered procured he shall be entitled to compensation at any any the continuance of such during etc. refusal,” It is able argued although petitioner do he lighter work in which earn engaged wages now greater formerly, present than “his employment prob- ably temporary,” as found the trial that, judge, therefore, on award based decrease capacity his' to perform the he particular doing work in- when *7 jured should be affirmed. Petitioner on 6th testified the 1943, that he had March, been working regularly since Air October 11th, for an Utilities, Inc., airport, aeroplane etc. We the repairing wings, quote from record: “In answer to a question from the Court toas whether present job his temporary, petitioner says: is 'I don’t how that job know will that war long last; ais ” project.’ This the on is evidence only point. Con- ceding that this statement indicate's that this particular job temporary, is nothing to show petitioner will able not be other to find with employment, or same other in which he employers, can to continue earn Quite wages. he is a a workman in evidently skilled line of work be in likely to even war demand, when the (cid:127) over. The statute makes exception based an on opinion, supported expression by petitioner' employment- only, present -uncertainty that his open temporary.” wide would
“probably To so hold every speculation where measure case the door of wage earnings comparative The involved. Court A required future. look into the uncertain be to would Biglow and saying *8 pertinent Applying the measure the fixed 1941.” quoted, “the between to difference above wit, statute wage the time of the and the of the workman wage partially con- in disabled he is able to earn his the ” it that there is no for an award dition, basis obvious any only not in amount,- in since decrease injury, earnings his since but an increase. his expense award for medical and $82.50 challenged ground on the written no treatment judge given, tice but not since trial was held support this notice was waived and we this find for holding, being think waiver, we this substitute for the justifies written ex notice, allowance medical this for pense judgment treatment. The below affirmed and to allowance, this and otherwise reversed. to-
ON Petition Rehear. petition complains A to rehear Court failure assignments challenging liability to sustain decreed ground parties medical on the were services, engaged in interstate commerce, ease, which Code Compensation not'apply. Section 6856, Law does assignment original not We did our discuss opinion, having not this issue been the trial raised petition contrary, charged court. On and .the parties operating* answer admitted that the were under judge expressly the trial so Act, found. .The motion for a new trial not was directed challenge finding. this issue, and did not The at- tention of trial court thereto. called Grounds general 13 and 15 of the for a motion new are too trial purpose. to be effective for this (5)
Paragraphs (4) of Rule of this Court preclude expressly alleged appeal consideration on specifically “seasonably errors not called adversely attention to the ruled on plaintiff applies in error.” This rule “mat likewise to judgment.” ter in arrest of re- And this Court has *9 230 harmony
peateclly in rule, to with held this this effect, particular reference thereto. without conclusive, to has would seem be What been said petitioner says ground the -the that, raised, but on now jurisdiction, rule invokes the was without Court and cognizance of take will, case, Court such jurisdiction, although question for the first of raised jurisdic But the Court had time this Court. Circuit general only court tion cause. It is a' brought jurisdiction, jurisdiction re to but it of suits has Compensation by the the of the under Act terms cover Section 6885'. Act itself. Code, defined-by tersely as, Bouvier Jurisdiction is power Or “the “the to and a cause.” hear determine adjudicate right concerning subject-matter in the to the given I Third Revision, case.” Law Diet., Bouv. Rawles high p. by 1760. laid down These three essentials are authority:‘First, cognizance the must have the Court adjudicated belongs to ; one to be class cases which parties present; point proper be and third, must upon within effect, be, decided must substance and Judgments, paragraph All Black 242. issue. on appear of these here. essentials operation from Code, 6856 excludes Section (a), (c), (b), subsections law, b3?- (d) (e), engaged in inter carriers, common .while persons employment whose commerce; is casual state agri injury; time farm domestic, at the of the employments; subject prescribed ex cultural and, ceptions, employed, where than five are cases less municipal employments. County When State, suit may brought either' these situations be relied on in if so relied and, the facts on in defense, adjudged. proved, liability are defense cannot be In. any question case one such of fact. If such open proof. pleading's, the fact issue made finding’ supported court if thereon, competent appeal. material be evidence, will affirmed on charges petition when, But here, that, *10 injury, company operating of the the defendant “was under the Law, Workmen’s and carried petitioner insurance on em- other ployees company, with” named defendant insurance employer defendant defendant insurer (cid:127) jointly charges, expressly answer and “admit” these plead specifically notice, their as defenses want injury, permanent injury, disabling no and no or other matters, thereby putting only, etc., in issue these ordinarily pleadings are defendants concluded as under Code Section 6856. when, And defenses steps furthermore, hereinabove are taken shown, following testimony in the trial court, the introduction of (which alleged parties it is now showed were engaged in interstate commerce in- jury), present specifically to raise and issue judge, cognizance Court will not take thereof. petition to rehear is dismissed. in his Notes Bills, attributed Mr. point p. here: is in 7, to Lord Bowen Ed., Checks, 2nd . it . . an- business; should not follow “Law should except urgent ticipate most for business, course reasons.” employment petitioner, In instant case the aeroplane industry, in the as shown, is has been judicially knows that mechanic, and the skilled Court prediction generally widely and entertained belief is transporta relatively modern mode of made that pos freight, passengers limitless has tion, both development growth. It can not be said sibilities for promises great industry be skilled work only. temporary demand injured petitioner December, on the 23rd of The was average weekly found his 1941. prior immediately wages, December the 52 “for weeks average thirty-four his dollars, 23rd, 1941, earnings weekly 1942, 15th, thereafter, until October Freight Super working' Motor Com- Service while for year . pany, 1941 . . more than for the slightly were earnings average 15th, after October that his lighter were work, and much more in other and suitable year average earnings more than his somewhat