Roberts v. Ohio Casualty Insurance Company
| Decision Date | 09 July 1958 |
| Docket Number | No. 16893.,16893. |
| Citation | 256 F.2d 35 |
| Parties | May ROBERTS et al., Appellants, v. OHIO CASUALTY INSURANCE COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
COPYRIGHT MATERIAL OMITTED
James C. Brady, San Antonio, Tex., for appellants.
Jack Hebdon, Eskridge, Groce & Hebdon, San Antonio, Tex., for appellee.
Before JONES, BROWN, and WISDOM, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Western District of Texas setting aside an award of the Industrial Accident Board of Texas. Jurisdiction is based on diversity of citizenship. 28 U.S.C.A. § 1332.
Ohio Casualty Insurance Company, appellee, filed suit to set aside a ruling of the Industrial Accident Board. The ruling awarded death benefits to the minor children of Alonzo Roberts and funeral expenses to the decedent's mother. Roberts' former wife, Mrs. Helen Milliken, had filed the claim for compensation in behalf of the children but could assert no claim for herself because of being divorced from Roberts. Ohio Casualty's suit was filed against the claimants — the children and their grandmother.
The Board rendered its award October 11, 1955. October 25 Ohio Casualty gave notice to the Board that it intended to appeal. Suit was filed November 9, 1955, within the twenty-day period, as required by the Texas Workmen's Compensation Act. Summons was issued the day the suit was filed. Service of process was not made until January 19, 1956.
The Roberts children and their grandmother filed an answer and counterclaim to mature the award, on the theory that Ohio Casualty had not exercised reasonable care and diligence in obtaining service on the defendants, and therefore it had not prosecuted its suit in good faith within the time limit prescribed by statute. Ohio Casualty moved to dismiss the answer and counterclaim, supported by affidavits showing the United States Marshal's difficulties in locating the defendants, and showing also that the attorneys for Ohio Casualty had been active in attempting to have defendants served. No counter affidavits were filed. The only facts before the trial judge on appellee's motion were that suit was filed in time, the summons was issued immediately, and service was delayed because of circumstances beyond the control of Ohio Casualty. The trial court dismissed the Roberts' answer and counterclaim, in effect granting Ohio Casualty a summary judgment under Rules 12(b) and 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
On the trial of the case, one issue was submitted to the jury: was Alonzo within the scope of his employment at the time of the accident? The jury answered, No. The district court then granted judgment for Ohio Casualty, setting aside the Board's award.
A week later, the mother of the children, as "Next Friend", filed a motion to set aside the judgment on the ground that the court had not appointed a guardian ad litem to represent the minors. The district court overruled the motion. The Roberts children appeal from the order overruling this motion and from the judgment setting aside the award of the Industrial Accident Board.
The appeal presents two questions: (1) Did Ohio Casualty "prosecute" its suit within the twenty-day limitation prescribed by the Texas Workmen's Compensation Law? (2) Was it reversible error for the trial judge not to appoint a guardian ad litem under the circumstances of this case?
The Texas Workmen's Compensation Law, Vernon's Texas Civil Statutes, Article 8307, Section 5 provides:
Litigants cannot trifle with Article 8307, Section 5. It goes beyond the ordinary statute of limitations. Its requirements are jurisdictional. Digby v. U. S. Fidelity & Guaranty Co., 5 Cir., 1957, 239 F.2d 569; Pappas v. Royal Indemnity Co., 5 Cir., 1958, 251 F.2d 439; Mingus v. Wadley, 1936, 115 Tex. 551, 285 S.W. 1084.
Under the Texas cases, the test of prosecution is "a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same, an undisclosed intention not being sufficient". Maryland Casualty v. Jones, Tex. Civ.App.1934, 73 S.W.2d 668; adopted by Tex.Sup.Ct., 129 Tex. 392, 104 S.W. 2d 847, 849. Similarly, in Ocean Accident & Guaranty Corp. v. May, Tex.Com. App.1929, 15 S.W.2d 594, 597, the Court said: "The filing of the petition with the clerk of the proper court, with the bona fide intention that process shall be issued and served at once, is all that is necessary to comply with the statute."
In our opinion, there is no doubt as to Ohio Casualty's bona fide intention to prosecute. At the time suit was filed, Frank Christian, the attorney who filed the suit, went to the Marshal's office, gave the names and addresses of the defendants, and asked that summons be served promptly. A Deputy Marshal made four attempts to serve defendants up to December 13, 1955. After an investigation, Mr. Christian learned that the Roberts had left San Antonio and were living in Corpus Christi. H...
To continue reading
Request your trial
-
T____ H____ v. Jones
...of School Comm'rs, 7 Cir., 490 F.2d 601, 604, vacated as moot, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); Roberts v. Ohio Cas. Ins. Co., 5 Cir., 256 F.2d 35, 39; Rotzenburg v. Neenah Joint School Dist., E.D.Wis., 62 F.R.D. 340. We have considered the following facts in making that de......
-
Donnelly v. Parker
...infant or incompetent person." Fed.R.Civ. P. 17(c). 17 See authorities cited supra notes 13, 15. 18 See Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 38-39, 68 A.L.R.2d 747 (5th Cir. 1958); United States v. Noble, 269 F.Supp. 814, 815 19 See New Mexico Veterans' Serv. Comm'n v. United Van Lin......
-
Gaddis v. U.S.
...the protection of infants [or incompetent persons]." Adelman, 747 F.2d at 989 (alteration in original) (citing Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 39 (5th Cir.1958)). The need to protect the minor's or incompetent person's rights and interests in federal court proceedings is extreme......
-
Kingsley v. Kingsley
...by counsel, in and of itself, is not sufficient. Brown v. Ripley, 119 So.2d 712 (Fla. 1st DCA 1960). See also Roberts v. Ohio Casualty Insurance Co., 256 F.2d 35, 39 (5th Cir.1958); Zaro v. Strauss, 167 F.2d 218 (5th Cir.1948). Unless a child has a guardian or other like fiduciary, a child ......
-
Settling the Claims of a Minor
...Alabama rule, governs appointment of a guardian ad litem in federal court. See Burke, 252 F.3d at 1264; Roberts v. Ohio Cas. Co., 256 F.2d 35, 38 (5th Cir. 1958). There is no requirement that a guardian ad litem be appointed as long as the minor has an attorney and the next friend has no co......
-
The Perils of Guardian Ad Litem Appointments
...Corr., CASE NO: 8:05-cv-684-T-23TBM, at *1 (M.D. Fla. Apr. 23, 2007). [28] 398 Fed. Appx. at 470 (quoting Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 39 (5th Cir.1958)). [29] 256 F.2d at__ [30] Id. [31] Regency Health Serv., Inc. v. Superior Court, 64 Cal. App. 4th 1496, 1498 (Cal. Ct. App.......