Nelson v. Cambria Coal Co. , 178 Tenn. 389 ( 1942 )

ON PETITION TO REHEAR. Counsel misconceive the ground on which the decision in this case was rested. It is erroneously assumed that the application for additional and increased compensation was held to have been barred by operation of some statute of limitations, not provided for in the compensation law, and contrary to previous holdings of this Court, stressing chiefly Phillips v. Memphis FurnitureMfg. Co., 168 Tenn. 481, 79 S.W.2d 576, and next, perhaps,Glotfelter Erection Co. v. Smith, 156 Tenn. 268, 200 S.W. 6.

But the determinative question in the instant case was not one of statutory limitations, as in the cases cited, but of judicial jurisdiction. It was held that, while the award in a compensation case was subject to modification under the statute (Code, Section 6892) application therefor must be made while the jurisdiction of the Court over the case continues, and that this jurisdiction no longer exists when and after all periodic or other payments provided for in the original award have been made and the judgment has been fully discharged.

It was held, following the authority and reasoning of the opinion in the leading case of Bosquet v. Howe Scale Co.,96 Vt. 364, 120 A., 171, 173, and others cited, that the phrase "at any time" means at any time while the jurisdiction of the Court decreeing the original award continues over the case — that this jurisdiction expires when the case is finally disposed of by discharge of all obligations adjudged by the original decree. I can add nothing to what has been said in the original opinion and in the opinion of the Vermont Court freely quoted from, in support of this view.

However, with further reference to the insistence made for petitioner that our present holding is in conflict with that in the former cases above cited, attention is called to the fact that in the Phillips opinion, at pages 485, 486 of 168 Tenn.79 S.W.2d 576, 577, the distinction between limitations and lack of jurisdiction, as a defense, is recognized. Indeed, that opinion cites the identical case (Bosquet v. Howe Scale Co.,supra) followed in the instant case, and distinguishes it from the Phillips case on this very point of jurisdiction. I quote from our opinion in the Phillips case the following:

"More in point are decisions cited of the courts of New Jersey, Vermont, and Georgia construing statutes containing no limitation on the time within which applications must be brought for increased or additional awards based on the original injury once finally adjudged. But in none of these cases had reservation of this right been expressly made in the decree of award, as appears here. And the language of the paragraph quoted from the opinion in the Vermont case relied on (Bosquet v. Howe Scale Co.,96 Vt. 364, 120 A., 171, 173) is as follows: `We are constrained to hold that the phrase "at any time" does not give the commissioner continuing jurisdiction, unlimited as to time, but means at any time before a claim for compensation pending with him is finally disposed of.'

"The distinctive point is apparent. The thing lacking in that case is supplied here. By the express terms of the decree in the instant case, the jurisdictional right was extended and final disposition was deferred, and this by agreement and consent of the parties."

In other words, we thus expressly found that the question of jurisdiction of the Court over the decree was not involved in that case. (Nor did it arise in the Glotfelter case, either on the facts appearing, or in the discussion by the Court.) The determinative distinction on the facts between the Phillips case and the present case is that in that case jurisdiction was preserved by "agreement and consent of the parties," which the record in the instant case does not show. The provision in the judgment in the instant case for future modification, not shown to have been "by agreement and consent of the parties," was effective to extend the jurisdiction of the Court only if invoked "at any time" before the claim adjudged was fully discharged and the Court's jurisdiction exhausted. Petition denied.