Wilson v. City of Chattanooga

• Decision Date: 07 November 1942
• Citation: 165 S.W.2d 373,179 Tenn. 234
• Parties: WILSON v. CITY OF CHATTANOOGA et al.
• Court: Tennessee Supreme Court

165 S.W.2d 373

179 Tenn. 234

WILSON v. CITY OF CHATTANOOGA et al.

Supreme Court of Tennessee.

November 7, 1942

Error to Circuit Court, Hamilton County; Fred B. Ballard, Judge.

Action by L. W. Wilson against the City of Chattanooga and another to recover for injuries. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Clarence Kolwyck, of Chattanooga, for plaintiff in error L. W. Wilson.

C. G Milligan and W. F. Chamlee, both of Chattanooga, for defendant in error City of Chattanooga.

Sam J McAllester, of Chattanooga, for defendant in error C. B Andrews Co.

PREWITT Justice.

The question here is whether the plaintiff Wilson, having accepted a number of payments under the Workmen's Compensation Act, can maintain this suit against the third party tort-feasor.

In his declaration plaintiff alleged that on September 7, 1941 while engaged in painting a smokestack for the defendant Andrews, as an employee of one Patterson, an independent contractor, he came in contact with some high tension wires leading into the Andrews plant which had been erected by both defendants in too close proximity of the smokestack in violation of the Building Code of the City of Chattanooga, which caused him to sustain, among other injuries, a loss of substantially all of the first toe on his left foot.

To this declaration the defendants filed a special plea alleging that at the time of the accident the plaintiff and his employer Patterson were subject to the Workmen's Compensation Act, and that he collected the sum of $18 per week for eleven weeks, and had accepted medical benefits as provided by the Act, which payments defendants relied upon as an accord and satisfaction and discharge.

The plaintiff thereupon filed a replication to the special plea stating that at the time he accepted the workmen's compensation benefits he was not aware of any choice of remedies he might have and did not intend to abandon his rights against the defendants.

The defendant thereupon demurred to the replication. The trial judge sustained the demurrer, holding that the plaintiff had elected to take under section 6865 of the Code, which reads as follows: "Whenever an injury for which compensation is payable under this chapter 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 employee 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 chapter, the employer having paid the compensation or having become liable therefor, may collect, in his own name or in the name of the injured employee in a suit brought for the purpose, from the other person against whom legal liability for damages exists, the indemnity paid or payable to the injured employee."

The above section of the Code has been before this court for consideration in several cases, and it is well settled that an employee who receives workmen's compensation for an accident contributed to or brought about by the negligence of a third party, upon collecting such compensation, loses his right in his own behalf to sue such third party for damages. This right of action against a third party passes to the employer by statutory subrogation. This is undoubtedly the rule when the employee collects compensation from his employer without reservation or exception of the right of action against a third party, or without waiver of the right of subrogation by the employer. Mitchell v. Usilton, 146 Tenn. 419, 242 S.W. 648; City of Nashville v. Latham, 160 Tenn. 581, 28 S.W.2d 46; American Mutual Liability Ins. Co. v. Otis Elevator Co., 160 Tenn. 248, 23 S.W.2d 245; McCreary v. Nashville, C. & St. L. Ry., 161 Tenn. 691, 34 S.W.2d 210, 211.

Under the Workmen's Compensation Law the employer becomes liable to the employee as compensation payments accrue, and under the terms of ...