Hutto v. Benson

• Decision Date: 30 April 1954
• Docket Number: No. 11873,11874.,11873
• Citation: 212 F.2d 349
• Parties: HUTTO v. BENSON et al. NEWARK INS. CO. v. BENSON et al.
• Court: U.S. Court of Appeals — Sixth Circuit

212 F.2d 349 (1954)

HUTTO v. BENSON et al.

NEWARK INS. CO. v. BENSON et al.

Nos. 11873, 11874.

United States Court of Appeals Sixth Circuit.

April 30, 1954.

Jesse C. Parks, Jr., and Joe Van Derveer, Chattanooga, Tenn., for appellant A. F. Hutto.

Erma Greenwood, Knoxville, Tenn., R. R. Kramer, Knoxville, Tenn., on brief for appellant Newark Ins. Co.

H. H. McCampbell, Jr., Knoxville, Tenn., for appellees.

Before SIMONS, Chief Judge, and AlLEN and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

These two appeals, one instituted by the appellant Hutto, hereinafter called Hutto, in a personal injury action, and the other by the appellant Newark Insurance Company, hereinafter called Newark, insurer under the Workmen's Compensation Act of Texas, Vernon's Ann.Civ.St. art. 8306 et seq., involve the same transactions and were consolidated for argument and decision. Each attacks a judgment of the District Court which dismissed an action against a third party resident in the State of Tennessee upon the ground that the Tennessee statute of limitations had run. This statute provides a limitation of one year for personal injury cases, Code, § 8595, while the Texas period of limitation in such cases is two years, Vernon's Ann.Civ.St. art. 5526.

On August 20, 1952, Hutto filed a complaint against the appellees, residents of the State of Tennessee, in the District Court for the Eastern District of Tennessee. Hutto alleged that he was a painter by trade and that on or about the 13th day of August, 1951, while he was engaged in the performance of his duties in Wichita Falls, Wichita County, Texas, a scaffold made or manufactured by the appellees and then being used by Hutto, gave way by reason of negligent or defective construction, causing Hutto to fall and suffer serious injuries. Later Hutto prayed for leave to amend his complaint by adding two new paragraphs which read as follows:

"That his injuries arose `out of\' and `in the course of\' his employment and by reason thereof he filed a claim with the Industrial Accident Board of the State of Texas for those benefits provided by the Workmen\'s Compensation Act of that State on September 13, 1951, his employer, the C. H. A. Paint Company, and their workmen\'s compensation insurance carrier, the Newark Insurance Company, being duly notified. The Industrial Accident Board of the State of Texas, duly charged with the administration of the Workmen\'s Compensation Act of that State, determined that he was entitled to compensation, and accordingly made an award in an amount unsatisfactory to him. That thereafter he appealed the decision of the Industrial Accident Board to the U. S. District Court for the Northern District of Texas, Wichita Falls Division, and while his suit was pending therein entered into a compromise agreement under the terms of which the Newark Insurance Company, as the Workmen\'s Compensation insurance carrier for his employer, paid to him the sum of Forty-five Hundred ($4,500.00) Dollars in addition to the sum of One Hundred Seventy-five ($175.00) Dollars which the Newark Insurance Company had theretofore paid him and in addition to medical expenses to that date incurred by him in the amount of Four Hundred Four ($404.64) and 64/100 Dollars. That on the 29th day of November, 1951, the Industrial Accident Board of the State of Texas entered an order approving the compromise settlement made by the parties.

"That under the provisions of the Workmen\'s Compensation Act of the State of Texas, the injured employee, having collected from his employer or its insurer those benefits provided by the Workmen\'s Compensation Act of the State of Texas, may then proceed at law against a negligent third party, or that party responsible for his injuries, and recover damages therefor. That the amount received by him under the provisions of the Workmen\'s Compensation Act of the State of Texas are hideously inadequate in view of the seriousness of his injuries and he therefore now brings this action."

Appellant Newark filed a motion to intervene as plaintiff and tendered a complaint which, in addition to the facts set forth in Hutto's complaint, reads as follows:

"6. That on or about September 13, 1951, the original plaintiff herein, A. F. Hutto, duly filed his claim for compensation for injury with the Industrial Accident Board of Texas under the style and number of A. F. Hutto v. C. H. A. Painting Company, No. K-45259.

"7. That on or about November 23, 1951, and during the pendency of said claim before the Industrial Accident Board of Texas the parties entered into a compromise settlement agreement of said claim under the terms of which the Newark Insurance Company as Workmen\'s Compensation insurance carrier for C. H. A. Painting Company was to pay to said A. F. Hutto the sum of Four Thousand Five Hundred ($4,500.00) Dollars in addition to the sum of One Hundred Seventy-five ($175.00) Dollars which the said Newark Insurance Company had theretofore paid to the said A. F. Hutto, and in addition to medical expenses in the amount of Four Hundred Four and 65/100 ($404.65) Dollars incurred by or for the said A. F. Hutto as the result of the accidental injuries aforesaid. That on the 29th day of November, 1951, the Industrial Accident Board of Texas entered an order approving the compromise settlement agreement made by the parties.

"8. That pursuant to said order this intervenor, Newark Insurance Company, on or about December 1, 1951, paid to the said A. F. Hutto the additional sum of Four Thousand Five Hundred ($4,500.00) Dollars, making in all the sum of Five Thousand Seventy-nine and 65/100 ($5,079.65) Dollars paid by this intervenor as compensation benefits and medical services to the said A. F. Hutto as a result of the accidental injuries received by the said Hutto at the time and place aforesaid.

"9. That under the provisions of the Workmen\'s Compensation Act of Texas the employee, having collected benefits from his employer or its insurer under the provisions of the Workmen\'s Compensation Act of Texas, may then proceed at law against a negligent third person to recover damages for the injuries sustained by him. However, under the provisions of the Workmen\'s Compensation Act of Texas in those instances in which the employee prosecutes an action against a negligent third person after having received compensation benefits from his employer or its insurer, such employee may not recover from such negligent third party the sums paid by the insurer or employer. However, an insurer which has paid compensation benefits to an injured employee is subrogated to the rights of such injured employee against a negligent third party to the extent of payments made, expenses incurred, etc., and may itself maintain an action against such negligent third party, or may intervene as a party plaintiff in such an action brought by the injured employee and may itself recover from the negligent third party such sums paid by it to the employee together with the reasonable costs of such liability as determined by the court trying the case."

Newark demanded judgment for the sum of $5,079.65 with interest, together with the reasonable cost of enforcing the liability and the costs of the action. The District Court considered that the action was barred by the statute of limitations of Tennessee and therefore refused to permit Hutto's amended complaint and Newark's intervening complaint to be filed. D.C., 110 F.Supp. 355.

Appellant contends that this holding runs counter to the decisions of this court in Wilson v. Massengill, 6 Cir., 124 F.2d 666, and Maki v. George R. Cooke Co., 6 Cir., 124 F.2d 663, 146 A.L.R. 1352. In these cases our court applied the doctrine that, where by statute a state creates a cause of action for wrongful death and prescribes in the same statute a limitation period for such action, such limitation will be applied in the forum of a sister state, although the period of limitation for a like action in the latter state is shorter. See also Theroux v. Northern Pacific R. Co., 8 Cir., 64 F. 84; Lewis v. Reconstruction Finance Corporation, 85 U.S.App.D.C. 339, 177 F.2d 654.

This contention cannot be sustained, for the premise upon which the cited cases were based is absent here. No limitation period is prescribed in the Workmen's Compensation Act of Texas. The applicable provision is part of the general Texas statute of limitations. Moreover, the Supreme Court of the United States in the case of Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S. Ct. 856, 97 L.Ed. 1211, has recently cast doubt upon the doctrine of Wilson v. Massengill, supra. In that case the alleged wrongful death occurred in Alabama and the action was instituted in Pennsylvania. The statute creating the cause of action for wrongful death in Alabama prescribed a limitation of two years, while the period set in the Pennsylvania general statute of limitations provided one year. Although the Alabama statute construed embodied a limitation provision, the Pennsylvania District Court, 102 F.Supp. 519, and the Court of Appeals, 3 Cir., 195 F.2d 814...