Mitchell v. Usilton

• Decision Date: 10 June 1922
• Citation: 242 S.W. 648,146 Tenn. 419
• Parties: MITCHELL v. USILTON.
• Court: Tennessee Supreme Court

242 S.W. 648

146 Tenn. 419

MITCHELL v. USILTON.

Supreme Court of Tennessee.

June 10, 1922

Error to Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by J. M. Mitchell against L. H. Usilton. From judgment dismissing plaintiff's suit, plaintiff brings error. Affirmed.

Murray Counts & Emerson, of Chattanooga, for plaintiff in error.

Silas Williams, of Chattanooga, for defendant in error.

HALL J.

This suit was brought in the circuit court of Hamilton county by J. M. Mitchell against L. H. Usilton, to recover damages for personal injuries sustained by Mitchell while in the employ of the Turner Construction Company. The parties will be referred to in this opinion according to their status in the court below; that is, plaintiff and defendant.

Defendant demurred to the plaintiff's declaration, which demurrer was sustained, and his suit was dismissed. He has appealed to this court, and has assigned the action of the circuit judge sustaining said demurrer, for error.

The original declaration sought to recover damages of defendant for the injuries sustained by the plaintiff on account of the negligence of defendant, who was the superintendent of the Turner Construction Company.

To said declaration defendant filed three pleas, the first being the formal plea of "Not guilty." The second and third pleas raised the question that plaintiff was, at the time he was injured, in the employ of the Turner Construction Company; was injured while acting within the scope of his employment, and had received $425 from the Turner Construction Company as compensation for his injuries.

A motion was made by defendant to strike the two last pleas because insufficient. This motion was overruled by the court.

Later by agreement of the parties, these pleas were withdrawn, together with all proceedings thereon, and the plaintiff amended his declaration so as to aver that at the time of the injuries complained of plaintiff was in the employ of the Turner Construction Company, who was operating under the Workmen's Compensation Act (chapter 123, Acts 1919), and that under and by virtue of said act he was entitled to compensation from the Turner Construction Company to the amount of $425, which was paid to him by said company in satisfaction of the compensation due him under said act, and that to the extent of the amount so paid him by the Turner Construction Company this action is brought for and on behalf of the Turner Construction Company, and that the Turner Construction Company is entitled to be reimbursed for the amount so paid plaintiff under the Workmen's Compensation Act out of any recovery which may be awarded plaintiff on account of the injuries negligently inflicted by defendant.

Defendant demurred to the amended declaration on the following ground:

"The declaration shows on its face that plaintiff has made a settlement with the Turner Construction Company, his employer, under the Workmen's Compensation Law of Tennessee, being paid $425. Such settlement was in satisfaction of the same wrongs and injuries which plaintiff seeks the recovery for in this action, the defendant being the superintendent of the Turner Construction Company at the time the wrongs and injuries complained of were committed. Chapter 123, Tennessee Acts of 1919, § 14, which is the Workmen's Compensation Law of Tennessee, provides that an injured employé cannot collect compensation from his employer, and also collect damages from a third party in whom there may be legal liability for the same injury. Plaintiff's declaration shows that he is attempting to do this, and it is therefore insufficient in law to maintain this action."

As before stated, the demurrer was sustained by the trial court and plaintiff's suit was dismissed. From this judgment plaintiff has appealed to this court, and has assigned the action of the circuit judge for error.

The question, therefore, presented for determination is: Does the acceptance of compensation by the plaintiff from the Turner Construction Company under the Workmen's Compensation Act preclude him from recovering damages in the present action from defendant, on account of whose negligence it is averred that plaintiff's injuries were sustained?

It may be stated here that, while the amended declaration avers that the suit is brought for and on behalf of the Turner Construction Company, the plaintiff's employer, to the extent of the compensation paid to plaintiff by it, there is nothing in the declaration showing that the Turner Construction Company authorized the suit on its behalf.

The plaintiff's contentions are:

First, that he, having collected compensation from his employer, Turner Construction Company, under the Workmen's Compensation Act, can still, under the provisions of section 14 of said act, recover of defendant, whose negligence caused his injuries, damages, provided he reimburse his employer for the amount so paid him from such recovery.

Second, that, if section 14 of the Workmen's Compensation Act is not susceptible to this construction, then said section is unconstitutional and void.

It is contended by defendant:

First, that plaintiff cannot, under the provisions of section 14 of said act, collect from both his employer and defendant, because such collection would amount to double compensation for his injuries, and is expressly prohibited by said section.

Second, that said section is not unconstitutional and void.

Section 14 of the Workmen's Compensation Act is as follows:

"Be it further enacted, 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 employé 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; and if compensation is awarded under this act the employer having paid the compensation or having become liable therefor, may collect, in his own name or in the name of the injured employé in a suit brought for the purpose, from the other person in whom legal liability for damages exists, the indemnity paid or payable to the injured employé."

It will be noted that this section of the act expressly provides that, when an injury for which compensation is payable under said act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect...