Strader v. United Family Life Insurance Company

403 S.W.2d 765, 218 Tenn. 411, 22 McCanless 411, 1966 Tenn. LEXIS 578

• Court: Tennessee Supreme Court
• Decided: March 14, 1966
• Status: Published

Opinions

MR. Justice Chattin

delivered the opinion of the Court.

Leola Strader, complainant in the trial court, filed this suit for benefits under the Workmen’s Compensation Act. The defendants, United Family Life Insurance Company and its insurance carrier, defended on the ground the suit was barred by the statute of limitations of one year. The Chancellor sustained the plea and dismissed complainant’s bill.

Complainant did not file a motion for a new trial, but prayed .and was granted an appeal to this Court.

The defendants have filed in this Court a motion to dismiss the appeal on the ground complainant failed to file a motion for a new trial in the trial court.

To meet this motion it is insisted by complainant a motion for a new trial is not required in workmen’s compensation actions. It is argued in support of this insistence that such appeals are governed by T.C.A. Sections 27-303 and 27-304; and that this is especially true since the Legislature amended T.C.A. Section 27-303 by Chapter 143 of the Public Acts of 1965, which amended the Section by deleting the first sentence of the Section in its entirety and substituting in lieu thereof the following:

“All cases tried in a court of record without the intervention of a jury, whether in a court of equity or a court of law and whether tried according to the forms of law, jurisdiction to review which is in the Court of Appeals, shall be reviewed upon a simple appeal, as now provided in equity cases. In all such cases no motion for a new trial shall be necessary as a prerequisite to a review of either the final judgment or any order of the court preliminary thereto, hut when the case is tried on oral evidence a hill of exceptions shall he filed and included in the transcript. ’ ’

The remainder of Section 27-303, which was not deleted, provides:

“In all such cases the hearing of any issue of fact or of law in the appellate court shall he de novo upon the record of the trial court, accompanied by a presumption of the correctness of the judgment or decree of the trial court, unless the preponderance of the evidence is otherwise.”

T.C.A. Section 27-304 extends to the Supreme Court all the provisions of Section 27-303 in all civil cases tried in a court of record, without the intervention of a jury, where the exclusive jurisdiction to review is in the Supreme Court.

T.C.A. Section 50-1018 of our "Workmen’s Compensation Act provides:

“Any party to the proceedings in the circuit, criminal, or chancery court may, if dissatisfied or aggrieved by the judgment or decree of that court, pray an appeal in the nature of a writ of error to the Supreme Court, where the cause shall he heard and determined in accordance with practice governing other appeals in the nature of a writ of error in civil causes.”

Thus, there is an apparent conflict in the Code Sections under consideration. This being true, T.C.A. Section 1-303 applies. That Section provides:

“Conflicts within code. — If provisions of different titles or chapters of the Code appear to contravene each other, the provisions of each title or chapter shall prevail as to all matters and questions growing ont of the subject-matter of that title or chapter.”

The matter here under consideration grew ont of onr Workmen’s Compensation Act, T.C.A. Section 50-901 et seq. Thus, an appeal in such cases is by writ of error and not by simple appeal.

Moreover, the Supreme Court does not re-weigh evidence or attempt to see where the preponderance lies on appeal in Workmen’s Compensation cases, but will affirm even though the preponderance of the evidence is against the trial judge’s or chancellor’s finding if that finding is supported by material evidence. Swift & Company v. Howard, 186 Tenn. 584, 212 S.W.2d 388 (1948); Atlas Powder Company v. Deister, 197 Tenn. 491, 274 S.W.2d 364 (1952); Frady v. Werthan Bag Corporation, 193 Tenn. 1, 241 S.W.2d 836 (1950); Harriman Manufacturing Company v. Shadden, 197 Tenn. 328, 273 S.W.2d 12 (1954); Shubert v. Steelman, 214 Tenn. 102, 377 S.W. 2d 940 (1964).

Since the enactment of the Workmen’s Compensation Act it has been the rule in this State this Court will not consider any assignment of error in a Workmen’s Compensation case which was not made a ground for a motion for a new trial and seasonably brought to the attention of the trial judge, Mashburn v. Ne-Hi Bottling Company, 191 Tenn. 135, 229 S.W.2d 520, 232 S.W. 2d 11 (1950); Hyter v. Wheland Company, 207 Tenn. 127, 338 S.W.2d 571 (1960).

We are of the opinion from what we have hereinabove said, the 1965 amendment to T.C.A. Section 27-303 does not necessitate a change in that rule.

Accordingly, the motion to dismiss the appeal is sustained at the cost of the complainant.

Burnett, Chiee Justice, and White, Dyer and Cre-son, Justices, concur.