Davis v. Swift & Co.

• Decision Date: 25 November 1939
• Citation: 133 S.W.2d 483,175 Tenn. 210
• Parties: DAVIS v. SWIFT & CO.
• Court: Tennessee Supreme Court

133 S.W.2d 483

175 Tenn. 210

DAVIS v. SWIFT & CO.

Supreme Court of Tennessee.

November 25, 1939

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit by Irving L. Davis against Swift & Co. to enforce a claim for compensation under the Florida Workmen's Compensation Act. From an adverse decree, complainant appeals.

Affirmed.

Jennings & O'Neil, and Howard F. Jarvis, all of Knoxville, for complainant.

Powers & Thornburg, of Knoxville, for defendant.

McKINNEY Justice.

The sole question involved in this proceeding is whether a claim under the Florida Workmen's Compensation Act will be enforced by a court of Tennessee.

The defendant, by plea in abatement, challenged the jurisdiction of the Tennessee court to grant the relief sought. To this plea plaintiff demurred. The chancellor overruled the demurrer, sustained the plea in abatement, and dismissed the suit.

Petitioner while residing in Florida, was employed by defendant to work at its plant at Fort Meade in that state, and while so employed, to wit, on the 6th day of May, 1938, fell from a scaffold and received injuries which he alleges rendered him totally and permanently disabled.

It is averred in the petition that petitioner and defendant were subject to and were operating under the Florida Workmen's Compensation Act. It is further averred that defendant recognized its obligation to him under the Florida Compensation Act by rendering medical and hospital services as provided therein, and by making two payments of compensation; that he was induced by defendant to return to his original domicile in Sunbright, Tennessee, for the purpose of recuperating, and upon the assurance that he would be taken care of in compliance with the Compensation Law that he did return to Tennessee on June 7, 1938, and on June 16th following received a letter from defendant notifying him that its doctors had advised it that petitioner was able to return to work; hence it would pay him no further compensation. This suit followed that announcement.

A copy of the Florida Workmen's Compensation Act, Chapter 17481 Acts 1935, as amended by Chapter 18413, Acts 1937, by consent, was made an exhibit to the plea in abatement. This Act differs in many respects from our own law. Some of its important provisions are the following:

1. It is to be administered by the "Florida Industrial Commission," consisting of a chairman and two other members to be appointed by the governor.

2. The Commission is authorized and empowered "to make such rules and regulations as may be necessary to effectuate the purposes of this Act." Section 44.

3. A claim for compensation may be filed with the Commission in accordance with regulations prescribed by the Commission, and the Commission is given full power and authority to hear and determine all questions in respect of such claims.

4. The Commission shall make or cause to be made such investigation as it considers necessary in respect of the claim, and upon application of any interested party shall order a hearing thereof.

5. The hearing may be conducted by a deputy commissioner, or by any member of the Commission, who shall within twenty days after such hearing determine the dispute in a summary way.

6. If an application for review is made to the Commission within seven days from the date of notice of the award, the full Commission shall review the evidence, or if deemed advisable, hear the parties at issue, their representatives and witnesses, and then make an award.

7. The Commission upon its own initiative may at any time make investigations and take such action as it deems proper (1) in which payments are being made without an award, and (2) where right to compensation is controverted, or where payments of compensation have been stopped or suspended.

8. The employer shall furnish such physician, surgeon, nurse and hospital service, medicine, crutches, artificial members, and apparatus for such period as the nature of the injury or the process of recovery may require. The Industrial Commission may at any time, for good cause shown it, in its discretion, order a change in such medical remedial attention.

9. Whenever the Commission deems it advisable it may require any employer to make a deposit with the State Treasurer to secure the prompt and convenient payments of such compensation.

10. From and after the Act becomes effective every employer and every employee, unless otherwise specifically provided, shall be presumed to have accepted its provisions, and shall be bound thereby.

11. The liability of an employer under the Act shall be exclusive of all other liability.

From the foregoing it will be readily seen that there is no machinery or agency in this state for enforcing such a contract as the parties hereto have voluntarily entered into.

An action for an award of compensation is a suit upon a contract. Cornett v. City of Chattanooga, 165 Tenn. 563, 56 S.W.2d 742; Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221; Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048, 35 A.L.R. 1409; 71 C.J. 239.

In Tennessee Coal, I. & R. Co. v. George, 233 U.S. 354, 359, 34 S.Ct. 587, 588, 58 L.Ed. 997, 999, 1000, L.R.A.1916D, 685, it is said:

"There are many cases where right and remedy are so united that the right cannot be enforced except in the manner and before the tribunal designated by the act. For the rule is well settled that 'where the provision for the liability is coupled with a provision for the special remedy, that remedy, that alone, must be employed.' Pollard v. Bailey, 20 Wall. [520] 527, 22 L.Ed. [376] 378; Galveston, H. & S. A. R. Co. v. Wallace, 223 U.S. [481], 490, 32 S.Ct. 205, 56 L.Ed. [516], 522; Stewart v. Baltimore & O. R. Co., 168 U.S. 445, 18 S.Ct. 105, 42 L.Ed. 537; Fourth Nat. Bank v. Francklyn, 120 U.S. [747], 753, 7 S.Ct. 757, 30 L.Ed. [825], 828."

In Johnson v. Employers Liability Assur. Corporation, 99 S.W.2d 979, 980, the Court of Civil Appeals of Texas, speaking through Chief Justice Walker, said: "It is an established principle of American jurisprudence that the policy of each state decides whether and to what extent its courts will entertain jurisdiction of transitory actions arising in other jurisdictions under their peculiar statutes. Chambers v. Baltimore, etc., R. Co., 207 U.S. 142, 28 S.Ct. 34, 52 L.Ed. 143; Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N.E. 619, L.R.A.1915F, 955, Ann. Cas.1913D, 568; Boston & Maine R. R. v. Hurd (C.C.A. [1 Cir.]), 108 F. 116, 56 L.R.A. 193."

The court held in that case that in view of the difference between the Employers' Liability Act of Louisiana and the Workmen's Compensation Act of Texas, and the differences in trial procedure, the Texas courts would not adjudicate the rights of parties under the Louisiana Employers' Liability Act for an injury occurring in that state while plaintiff was working under a contract of employment made in Louisiana and to be performed wholly within that state.

In the later case of Federal Underwriters Exchange v. Doyle, 110 S.W.2d 618, the Court of Civil Appeals of Texas adhered to the rule announced in the Johnson case.

In Logan v. Missouri Valley Bridge & Iron Co., 157 Ark. 528, 249 S.W. 21, 23, 24, the court, in announcing that it would not enforce a claim under the Oklahoma Workmen's Compensation Act, said: "Appellant's right of action is transitory, but an examination of the Oklahoma Workmen's Compensation Act, of which we take judicial notice, will discover that no machinery is provided by statute by which appellant could avail himself of the benefits of the Workmen's Compensation Act in this state. Likewise there are no judicial processes in this state that could be adapted to the enforcement of the provisions of the Oklahoma Workmen's Compensation Act."

In Cole v. Industrial Commission, 353 Ill. 415, 187 N.E. 520, 522, 90 A.L.R. 116, the Supreme Court declined to enforce a claim under the Indiana Workmen's Compensation Act, section 6 of which provided that "the rights and remedies herein granted to an employee subject to this act on account of personal injury or death by...