City of Nashville v. Latham

• Citation: 28 S.W.2d 46
• Parties: CITY OF NASHVILLE v. LATHAM.
• Decision Date: 24 May 1930
• Court: Supreme Court of Tennessee

Page 46

28 S.W.2d 46

CITY OF NASHVILLE v. LATHAM.

Supreme Court of Tennessee.

May 24, 1930.

Certiorari to Court of Appeals, on Appeal from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by R. A. Latham against the City of Nashville. To review judgment of Court of Appeals reversing judgment of trial court for plaintiff, plaintiff brings certiorari.

Decree of Court of Appeals reversed.

Judgment of trial court for plaintiff affirmed.

J. Washington Moore, J. Carlton Loser, Charles Gilbert, R. D. Gleaves, and Ferriss C. Bailey, all of Nashville, for plaintiff in error.

G. S. Moore, of Nashville, for defendant in error.

McKINNEY, J.

Latham, while delivering ice for his employer, Cumberland Ice & Coal Company, in the city of Nashville, received an injury due to the defective condition of Woodland street. He sued the city and was awarded a verdict of $150 in the circuit court. Upon appeal, the Court of Appeals reversed the judgment of the trial court and dismissed the suit upon the ground that Latham had accepted the benefits under the Workmen's Compensation Act (Laws 1919, c. 123, as amended). The case was brought to this court by petition for writ of certiorari, filed on behalf of Latham, which has been heretofore granted, and argument of counsel had.

When Latham was injured his employer placed him in its truck, carried him to the company physician, who dressed his wounds, and Latham rode in the company truck to the office of this physician for observation or treatment two or three times thereafter, but within a week. His injury only prevented him from working six days. The statute provides that no compensation shall be allowed for the first seven days of the injury (Laws 1919, c. 123, § 26, as amended by Laws 1923, c. 84, § 3).

It follows that Latham was entitled to no compensation and received none further than the medical attention referred to above, which the Court of Appeals held was an election to proceed under the act and a bar to a common-law action against the city.

Where the employee receives money, or its equivalent, from his employer as compensation for his injury, he cannot maintain a suit against a third party primarily responsible therefor. Mitchell v. Usilton, 146 Tenn. 419, 242 S. W. 648; Barbee v. Baker Car Co., 154 Tenn. 130, 289 S. W. 525.

This inquiry is narrowed to the simple proposition as to whether the acceptance of temporary medical services, tendered by the employer, is a receiving of compensation within the meaning of the act. Section 14 (Pub. Acts 1919, c. 123) provides:

"That whenever an injury for which compensation is payable under this Act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law against such other person to recover damages, or proceed against both the employer and such other person, but he shall not be entitled to collect from both."

In Mitchell v. Usilton, supra, it was held that an employee did not lose his right to proceed against a third person until he collects compensation from his employer.

It will be observed that the act expressly authorizes the employee to proceed to judgment against both parties, but he can only collect from one.

Counsel for the city concede that...