Perkins v. United States Fidelity & Guaranty Co.
Citation | 299 S.W. 213 |
Decision Date | 26 October 1927 |
Docket Number | (No. 820-4857.) |
Parties | PERKINS v. UNITED STATES FIDELITY & GUARANTY CO. |
Court | Supreme Court of Texas |
Dies, Stephenson & Dies, of Orange, for plaintiff in error.
Hunt & Teagle, of Houston, for defendant in error.
The Court of Civil Appeals makes the following statement of the case:
That court reversed the judgment of the trial court and rendered judgment for the appellant. 293 S. W. 675. It sustained assignments of error complaining of the refusal of the trial court to instruct a verdict for the insurance company, saying:
The plaintiff in error, in his application for the writ, complains of the last-quoted holding of the Court of Civil Appeals in his first assignment of error, as follows:
"First: The honorable Court of Civil Appeals erred in holding that the appellant did not, by its acts and conduct, adopt the Workmen's Compensation Law of Texas as its measure of rights and liabilities and thereby estop itself from asserting lack of jurisdiction of the district court of Orange county on account of the injuries complained of by appellee, which were received by him while engaged in work in the hold of a ship engaged in maritime commerce."
The controlling question in this case is whether the Court of Civil Appeals correctly held, under the facts in this record, that this injury was not within the jurisdiction of the state courts. In discussing this question, we think it helpful to determine whether or not, ordinarily speaking, one injured under circumstances which surrounded Perkins could recover under a state Compensation Act. If we shall show that one injured as Perkins was would be relegated to the admiralty courts, then it becomes important to determine whether or not defendant in error has waived its right to plead lack of jurisdiction in the state courts. Let us first consider the first question just mentioned.
We have already quoted the holding of the Court of Civil Appeals upon this point. That court sets out the relevant facts, as follows:
Reading the application, it would seem to be conceded that, unless the defendant in error herein waived its right to attack the jurisdiction of the state court, such plea would be good. But, as we read the application more in detail, and especially the argument therein and the cases cited, it is clear that counsel for Perkins entertained some doubt that the admiralty courts have exclusive jurisdiction of a case of this kind. In this contention, we think they are in error. The cases cited by the Court of Civil Appeals are exactly in point on the facts. The holdings therein are clear. The authorities cited include not only the decisions of the United States Supreme Court, but two recent Texas cases. In one of the latter a writ of error was refused by the Supreme Court. It seems that there was no application in the second case. In these two Texas cases, the injured party was engaged in the same kind of work as was Perkins, and it was held that there could be no recovery in those two cases under our Compensation Act (Rev. St. 1925, arts. 8306-8309).
Counsel for Perkins allude to the case of Lindberg v. Southern Casualty Company (D. C.) 15 F. (2d) 54. In that case, Judge Hutcheson of Houston held that the claimant was entitled to recover under the Louisiana Compensation Act (Act No. 20 of 1914, as amended). In discussing the facts surrounding the injured party in that case, the court said:
The court, in the Lindberg Case, supra, expresses a lack of sympathy with the opinion of the United States Supreme Court in the Dawson Case. We quote from his opinion as follows:
"While on the general proposition my view of the matter is that expressed by Mr. Justice Brandeis in his dissenting opinion in Washington v. Dawson, 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646, especially in that part of it which constitutes a most admirable contribution to the science of the law, beginning at page 235 of 264 U. S. (44 S. Ct. 302) to the end, and so feeling I would let my mind be bold to find an exception here, it is not necessary for me to do so, for the Supreme Court of the United States, in its slow but inevitable back trek has already made the exception in refusing writ of certiorari ( 46 S. Ct. 353 ) in Southern Surety Co. v. Crawford (Tex. Civ. App.) 274 S. W. 280, and in affirming the Supreme Court of Texas in Miller's Indemnity Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470, 1926 A. M. C. 310, in the one case holding that a dredgeman on a dredge in an inland harbor channel, while subject to admiralty jurisdiction, could contract with his employer and obtain the benefit of the Workmen's Compensation Act, and in the other that a driver on a floating barge, on the navigable Sabine river, while subject to admiralty jurisdiction, yet might obtain the benefit of the Workmen's Compensation Act of the state of Texas (Vernon's Ann. Civ. St. 1925, arts. 8306-8309), because the matter was local, and its control by the statutes of the state as to compensation would work no material prejudice to the general maritime law."
In the Dawson Case, Judge Brandeis dissenting, the federal Supreme Court held unconstitutional an act of Congress which was intended to permit men, situated as Perkins in the case at bar, to recover under the Compensation Acts of the various states. The court said that Congress, alone, could pass a uniform Employers'...
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