Harr v. Booher

146 Tenn. 694
CourtTennessee Supreme Court
DecidedSeptember 15, 1922
StatusPublished
Cited by3 cases

This text of 146 Tenn. 694 (Harr v. Booher) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harr v. Booher, 146 Tenn. 694 (Tenn. 1922).

Opinion

Mr. Justice Hall

delivered the opinion of the Court.

On June 3, 1920, the plaintiff in error, George J. Harr, who will hereafter be referred to as plaintiff, instituted this action in the law court of Bristol, Sullivan county, Tenn., against the defendants in error, James Booher and the Travelers’ Insurance Company, who will hereafter be referred to as defendants, to recover $5,000 as damages for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant Booher.

The suit was commenced by- plaintiff filing the pauper’s oath in lieu of bond, and on September 23, 1920, a summons was issued by the clerk, requiring the defendants named to answer “in plea of damages for $5,000 for personal injuries.”

Plaintiff filed his declaration in said action on February 12, 1921, claiming compensation under the workmen’s compensation statute (Pub. Laws 1919, chapter 123). The [696]*696declaration averred that on September 22, 1919, he was in the employ of the defendant Booher as a logger, and while engaged in said work in the Fifth civil district of Sullivan county it became necessary for him to hold a cant hook, which a fellow workman was striking with a hammer, in order to properly adjust the same, “when a small piece from the cant hook struck plaintiff’s right eye with such violence and in such way as to entirely destroy the eye.”

The declaration further averred that on August 26, 1919, the defendant Booher and O. L. Gibson, partners under the firm name of Gibson & Booher, and who had taken the contract to do the logging 'business hereinbefore referred to, took out a policy of insurance in the Travelers’ Insurance Company, as provided by the Tennessee workmen’s compensation statute, under which they were operating, to guarantee the payment of claims that might arise against them for compensation under said statute to employees receiving injuries while engaged in their service; that after said policy of insurance was taken out by defendant Booher and Gibson, said logging contract Was taken over by defendant Booher, as a subcontractor, who was engaged in carrying out said contract, and had in his employ more than ten persons, one of whom was plaintiff.

To this declaration defendants demurred.

Whereupon the plaintiff filed an amended declaration, in which it was averred that on June 3, 1920, a summons was issued by the clerk of the law court at Bristol, but by an oversight the clerk failed to place the same in the hands of the sheriff, and that another summons, which should have been marked “alias,” was issued September 23, 1920. This amended declaration further averred that the defendant Travelers’ Insurance Company was a nonresident cor[697]*697poration with an agency in the city of Bristol, in the Seventeenth civil district of Sullivan county, but at no other place in said county, and that the defendant Travelers’ Insurance Company had all the time denied liability to plaintiff under said policy.

The demurrers challenged the Jurisdiction of the law court of Bristol, averred failure to give the employer notice of the accident within the time prescribed by the workmen’s compensation statute, and set up the defense of the statute of limitations to said action. The several grounds of the demurrers were sustained by the court, and the plaintiffs suit was dismissed. He appealed from said judgment to the court of civil appeals. That court, on motion of defendants, transferred the case’ to this court for hearing.

The first question to be determined is whether the law court of Bristol has jurisdiction of a case arising under the workmen’s compensation statute.

It is insisted by plaintiff that, defendants having raised other questions than that of jurisdiction in their demurrers they have waived the question of jurisdiction.

We do not think this contention is well grounded, because the question of jurisdiction raised by defendants is as to the subject-matter rather than the persons of defendants. In the latter case defendants would have waived the qúestion by filing their demurrers, but in the former there can be no such waiver.

Now, did the law court of Bristol have jurisdiction? Section 27 of the workmen’s compensation statute provides that:

“All settlements, before the same are binding on either party, shall be approved by the judge of the circuit court [698]*698of the county where the claim for compensation under this act is entitled to be made.”

The act confers exclusive jurisdiction upon the circuit court in cases where there is an agreement between the parties.

Section 86 provides that commuted settlements may be made “only with the consent of the circuit court.”

Section 32 provides that: “In case of a dispute . . . either party may submit the entire matter for determination to the judge or chairman of the county court in which the accident occurred, and such judge or chairman is hereby vested with jurisdiction to hear and determine the issues and render judgment and enforce the same in the same manner as courts of record render and enforce judgment. . . . He shall have such powers in conducting hearings under this act as are possessed by the judges of the circuit courts. . . . The party invoking the power of said court shall file a petition setting out the facts on which the claim is based under this act. Upon said petition being filed the clerk of the county court shall issue and cause to be served on the defendant named in said petition a summons accompanied by a certified copy of the petition. . . . The party filing the petition may, at his option, instead of filing the same before the county judge or chairman, file the same as an original petition in either the circuit, criminal, or chancery court of the county in which petitioner resides or in which the alleged accident happens. . . . Any party . . . may . . . pray an appeal in the nature of a writ of error to the supreme court.”

It will thus be noted that the act has prescribed a complete remedy, and limited the jurisdiction of the subject-[699]*699matter of any claim arising under the Avorkmen’s compensation statute to the circuit, chancery, criminal, or county court, with exclusive appellate jurisdiction in the supreme court.

The law court of Bristol was created by an act of the legislature. Chapter 127, Acts of 1879. Section 10 of said act reads as follows: “That there shall be held at Bristol, in the county of Sullivan a law court for the Seventeenth civil district of said county, to be called the law court of Bristol, and to constitute .one of the courts of the First judicial circuit, and to be held by the judge thereof, with common-laAV jurisdiction, original and appellate — over all causes of a civil nature arising Avithin said Seventeenth civil district.”

The act of 1879 Avas amended by chapter 264, Acts of 1891. Section 2 of said amendatory act reads as follows:

“That all persons residing or doing business within the Third and Sixteenth civil districts of said county may bring their civil actions in the laAV court at Bristol against persons residing or doing business in said civil districts if they so desire, and said law court shall have and exercise full jurisdiction over same; and all civil causes heard and determined before any justice or justices of the peace of said Third and Sixteenth civil districts may be appealed or brought up by writs of certiorari

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Bluebook (online)
146 Tenn. 694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harr-v-booher-tenn-1922.