Tidwell v. Chattanooga Boiler & Tank Co.

• Decision Date: 25 January 1932
• Citation: 45 S.W.2d 528,163 Tenn. 648
• Parties: TIDWELL v. CHATTANOOGA BOILER & TANK CO.
• Court: Tennessee Supreme Court

45 S.W.2d 528

163 Tenn. 648

TIDWELL v. CHATTANOOGA BOILER & TANK CO.

Supreme Court of Tennessee.

January 25, 1932

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

On petition for rehearing.

Petition denied.

For former opinion, see 43 S.W.2d 221.

GREEN C.J.

A petition to rehear is filed in which we are asked to remand this cause for further proof and another hearing. The case was tried on a stipulation of facts, and our attention is called to certain details of the opinion which it is said are inaccurate and may be ascribed to the meager stipulation. These matters, however, are unimportant and another trial is not required.

It makes no difference upon what ground the District Court of the United States dismissed the suit of the state of Ohio against defendant, so long as the merits of the claim were not involved. Neither does it matter that the award of the Industrial Commission of Ohio was made after appearance of defendant before that tribunal rather than upon default of appearance by defendant, inasmuch as defendant has relied on that proceedings and award to escape liability herein.

We are satisfied with our conclusion that petitioner by her recovery in Ohio precluded herself from recovery in Tennessee. Under the law of Tennessee (Public Acts 1923, c. 123, as amended) she might have recovered compensation in a proceeding directly against defendant. Under the law of Ohio she was held entitled to a recovery for which the defendant is ultimately liable by the statute of that state. Section 1465-74, Compensation Law of Ohio. Under the law of either state, recovery of compensation in that state seems to be prevented by recovery of compensation in another state. An application for compensation in the one state is inconsistent with an application for compensation in the other state.

We are asked further for a more definite expression as to the liability of defendant to the state of Ohio. We suggested in the opinion, noticing an argument made, that, upon principles of estoppel, defendant's way of escape from the Ohio award was not apparent, since it had relied on that award to defeat liability herein. Davis v. Wakelee, 156 U.S 680, 15 S.Ct. 555, 39 L.Ed. 578.

A recovery of compensation in Tennessee by petitioner would no doubt have required the Industrial Commission of Ohio at least to discontinue further payments to the petitioner out of the insurance fund of that state. The ...