Tidwell v. Chattanooga Boiler & Tank Co.

• Decision Date: 14 November 1931
• Parties: TIDWELL v. CHATTANOOGA BOILER & TANK CO.
• Court: Tennessee Supreme Court

43 S.W.2d 221

163 Tenn. 420

TIDWELL v. CHATTANOOGA BOILER & TANK CO.

Supreme Court of Tennessee.

November 14, 1931

Error to Circuit Court, Hamilton County; L. D. Miller, Judge.

Proceeding under the Workmen's Compensation Act by Cora Tidwell claimant, opposed by the Chattanooga Boiler & Tank Company. To review a judgment of dismissal, claimant brings error.

Affirmed.

Lynch Bachman, Phillips & Lynch, of Chattanooga, for plaintiff in error.

Rankin Frazier & Roberts, of Chattanooga, for defendant in error.

GREEN C.J.

This is a suit under chapter 123 of the Acts of 1919 (as amended) by the widow of an employee of defendant. The suit was dismissed, and the petitioner has appealed.

There is no question but that petitioner's husband met his death in an accident arising out of and in the course of his employment. The defendant's principal office is in Chattanooga, Tenn., but it often sells its manufactured products in other states. Defendant had sold and agreed to install a boiler in Ironton, Ohio, and petitioner's husband, with other employees of defendant, was sent to this place in connection with the work of installation. The husband met his death in an accident occurring while on this job in the state of Ohio. His contract with defendant contemplated that he would be sent out of the state when occasion required, on jobs like this.

After her husband's death, the petitioner herein began proceedings in Ohio against the defendant under the Workmen's Compensation Laws of that state, section 1465-37 et seq., of the General Code of Ohio. She obtained an award of $4,800.64 from the Industrial Commission of Ohio on account of his death--$11.54 per week for 416 weeks. At the time of the trial below, she had received from this source $1,927.18, and it was stipulated herein that she would continue to receive said weekly payments until the award was satisfied.

The defendant received notice from the Industrial Commission of Ohio respecting the petitioner's claim there. Defendant ignored this notice, its position seeming to be that it had not qualified to do business in Ohio, had not complied with the compensation laws of that state, and was not amenable to said laws. After the award was made in favor of the petitioner, the Ohio Industrial Commission called on the defendant to satisfy the same, which defendant has refused to do. The state of Ohio, however, has created an insurance fund, and under its statutes the state acts as an insurer of the payment of compensation duly awarded, and the state, therefore, has made the payments to petitioner above mentioned and become responsible for payment of further installments of her compensation.

To recover its outlay and to secure its liability on this account, the state of Ohio appears to have brought one suit against the defendant for the use of this petitioner in the federal District Court at Chattanooga. That court, however, held that the petitioner was the real party plaintiff, and there was no diversity of citizenship to sustain the jurisdiction.

In the present suit, the widow seeking the compensation which ordinarily she would be entitled to under the Tennessee statute, the sole defense interposed is the proceedings in Ohio. Such proceedings out of the way, there would be no defense on the record before us. We agree, however, with the trial judge that the defense made was good.

The recovery here sought is a benefit the widow would be entitled to, if at all, as under the contract of employment between her husband and defendant. This is a suit upon contract. All the terms of chapter 123 of the Acts of 1919 (as amended) were written by law into that contract. Coal & Coke Co. v. Martin, 155 Tenn. 34, 290 S.W. 18; Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543; Poore v. Bowlin, 150 Tenn. 412, 265 S.W. 671; Smith v. Van Noy Interstate Co., 150 Tenn. 25, 262 S.W. 1048, 35 A. L. R. 1409; Western Union Telegraph Co. v. Ausbrooks, 148 Tenn. 615, 257 S.W. 858, 33 A. L. R. 330.

Section 19 of our Compensation Act is as follows:

"That when an accident happens while the employee is elsewhere than in this State, which would entitle him or his dependents to compensation had it happened in this State, the employee or his dependents shall be entitled to compensation under this Act if the contract of employment was made in this State, unless otherwise expressly provided by said contract."

Section 8 is in these...