Royal Indem. Co. v. Schmid

• Decision Date: 06 December 1971
• Citation: 225 Tenn. 610,3 Pack 610,474 S.W.2d 647
• Parties: , 225 Tenn. 610 ROYAL INDEMNITY COMPANY v. Shirley Ann SCHMID.
• Court: Tennessee Supreme Court

Page 647

474 S.W.2d 647

3 Pack 610, 225 Tenn. 610

ROYAL INDEMNITY COMPANY v. Shirley Ann SCHMID.

Supreme Court of Tennessee.

Dec. 6, 1971.

Paul E. Parker, O'Neil, Parker & Williamson, Knoxville, for appellant.

Dalton L. Townsend, Knoxville, for appellee.

OPINION

McCANLESS, Justice.

Shirley Ann Schmid, the widow of William F. Schmid, as her husband's executrix, brought suit in the Chancery Court to recover $4,432.89, with interest, of the Royal Indemnity Company, the workmen's compensation carrier of the employer of her husband. In her bill the complainant averred that William F. Schmid, in the scope of his employment by Ransom Enterprises, Inc., was killed in an automobile accident; that she had filed suit in Hamilton County against certain third parties for the wrongful death of her husband and obtained a judgment against them in the amount of $78,900.00; and that she had recovered $25,000.00 of the judgment.

The complainant further averred that in compliance with a judgment in the Circuit Court of Knox County, Royal Indemnity Company had paid the complainant and other dependents of William F. Schmid weekly workmen's compensation benefits of $42.00 and that at the time of the pronouncement of the judgment in Hamilton County it had paid a total of $2,688.00. The complainant recited that pursuant to an order of satisfaction of judgment entered in the Circuit Court of Knox County the defendant then discontinued its payments and that because of the defendant's subrogation rights the complainant then paid it $1,689.55, after the deduction of attorneys' fees and pro-rated expenses.

The complainant charged that under the Workmen's Compensation Law the defendant would have been liable to the complainant and the other dependents of William F. Schmid in the amount of $16,000.00 and that because of the judgment against the third parties and its satisfaction in excess of the statutory death benefits under the Workmen's Compensation Law, she had saved the defendant $13,312.00, discounting the $2,688.00 which had been reimbursed, after deducting attorneys' fees and pro-rated expenses.

Royal Indemnity Company at first demurred to the bill and, upon its demurrer being overruled, answered interposing the defenses of Res adjudicata, of accord and satisfaction, and that when the complainant filed her bill there had been a recovery of $25,000.00 of which the dependents had received a net amount in excess of $17,000.00 in workmen's compensation benefits and recovery from the responsible third party, such amount being in excess of the applicable workmen's compensation benefits. The company defended the complainant's suit also on the ground that the bill asserted a workmen's compensation claim which could not be prosecuted by the executrix.

The parties stipulated all the facts, which we have heretofore summarized.

The Chancellor filed his opinion in which he sustained the complainant's suit and on the basis of the opinion a decree in favor of the complainant and against the defendant for $4,432.89 was entered. The defendant has perfected its appeal to this Court and has assigned the following errors:

'1. It was error to allow the prosecution of this suit by an executrix and to allow a recovery against a Workmen's Compensation Insurance carrier for benefits other than those prescribed by the Act.

'2. The Court erred in failing to sustain the defendant's plea of accord and satisfaction and res judicata.

'3. The rights of the parties are controlled by the Workmen's Compensation Act which provides that the carrier's liability for future payment is to be credited with the net amount recovered from responsible third party. The Court erred in failing to adjudicate the rights of the parties as provided by T.C.A. 50--914.'

(1) By its first assignment of error the appellant, the Royal Indemnity Company, insists that the Chancellor erred in allowing the executrix to bring and prosecute this suit and to sue a workmen's compensation insurance carrier for benefits other than those prescribed by the Workmen's Compensation Law.

This suit grows out of the workmen's compensation claim but is not one that stems from 'the rights and remedies' granted by the Workmen's Compensation Law. For that reason we are of opinion that the claim on which it is based did not have to be asserted in the workmen's compensation proceeding in the Circuit Court. The complainant describes herself in the caption of the bill as her husband's executrix but in the body of the bill she shows that she asserts her claim for her personal benefit and for the benefit of the other dependents of William F. Schmid. Her suit cannot, in justice, be allowed to fail because of an incorrect designation of the complainant or because of a failure to join other necessary complainants by name. If it were necessary to a proper decision of the suit to do so, we would allow such errors and omissions to be corrected and supplied. § 27--329, T.C.A.; McCallum v. Woolsey, 65 Tenn. 308 (1873); Edgington v. Edgington, 179 Tenn. 83, 162 S.W.2d 1082 (1941).

We overrule the first assignment of error.

(2) By its second assignment the appellant contends that the court erred in failing to sustain its plea of accord and satisfaction and Res adjudicata.

The insistence of the appellant is that by an order entered in the workmen's compensation suit in the Circuit Court, pursuant to correspondence between the attorneys representing the respective parties, there was an accord and satisfaction of the claim presented in this suit and that the issues of this suit, by that order, were rendered Res adjudicata. With this insistence we do not agree. The letter of Mrs. Schmid's attorney enclosed a check for...