Opinion
Bass, Berrys&sSims, Nashville, Tenn., for Tennessee Tufting Co. and St. Paul Fires&sMarine Ins. Co.
Glasgow s&sAdams, James Swiggart, Nashville, Tenn., for Travelers Ins. Co. and Tennessee Tufting Co.
Eugene Jackson, Jr., Nashville, Tenn., for Mary Potter.
FELTS, Justice.
By petition to rehear, The Travelers complains of our holding that it, by force of the statute, is solely liable to the employee because it was the insurer during the period (May 2nd to August 4, 1958) while she was 'last injuriously exposed to the hazards of the disease' (T.C.A. Sec. 50-1106).
It is urged that this holding is 'directly opposed to' the Trial Judge's finding that 'the disability complained of was substantially and perceptibly and observably in existence prior to May 2, 1958, and that the cause or causes of said disability occurred prior to May 2, 1958'; that this finding is supported by material evidence; and that under the mode of limited review in workmen's compensation cases, we are bound by this finding.
This finding, however, was not a finding as to when the employee was 'last injuriously exposed to the hazards of the disease,' but merely a finding that 'the disability complained of,' and its cause or causes, began before May 2, 1958. It was doubtless meant to be a finding that her 'disease,' and its cause or causes, began before May 2, 1958. Otherwise, it is without support in the proof.
The undisputed proof was that she had a compensable occupational disease, caused by her work on the machine; that the disease, accompanied by recurring periods of temporary disability, began prior to May 2, 1958, and continued on to August 4, 1958, when it resulted in her permanent disability, 'the disability complained of.' That is, she was exposed to the hazards of her disease during the whole of this period, but was 'last injuriously exposed to such hazards' from May 2 to August 4, 1958, during the period The Travelers was the insurer.
[206 TENN 632] By the plain terms of the statute, it makes the test not when the disease, its cause or causes, or its resulting temporary disability, came into existence, but when the employee was 'last injuriously exposed to the hazards of the disease,' and provides that those who were the employer and its insurer during the time of such exposure, 'shall alone be liable' to the employee, 'without right to contribution from any prior employer or insurer' (id., sec. 1106). Wilson v. Van Buren County, supra, 198 Tenn. 178, 278 S.W.2d 685.
The purpose of the statute was to fix a definite time for determining which employer and insurer is liable, and to avoid inquiry as to when the disease, its cause or causes, or the resulting temporary disability, came into existence, which are often questions too difficult, uncertain, or speculative, to admit of satisfactory proof. Wilson v. Van Buren County, supra.
The petition to rehear points out no new matter of law or fact overlooked, but only reargues matters which counsel insists were improperly decided after argument and full consideration. Such a petition will be denied. Louisvilles&sN. Railroad Co. v. United States Fidelitys&sGuaranty Co., 125 Tenn. 658, 691, 148 S.W. 671, 680; Gulf, M.s&sO. R. Co. v. Underwood, 182 Tenn. 467, 476, 187 S.W.2d 777, 780; Colbaugh v. State, 188 Tenn. 103, 112, 216 S.W.2d 741.
The petition to rehear is denied at petitioner's cost.