Adams v. Consolidated Underwriters
| Decision Date | 15 February 1939 |
| Docket Number | No. 7183.,7183. |
| Citation | 124 S.W.2d 840 |
| Parties | ADAMS v. CONSOLIDATED UNDERWRITERS |
| Court | Texas Supreme Court |
E. E. Davis and Synnott & Smith, all of Jasper, for plaintiff in error.
Andrews, Kelley, Kurth & Campbell and Daffan Gilmer, all of Houston, for defendant in error.
This is a workman's compensation suit. It was tried in the District Court of Newton County, Texas, with Ed Adams as plaintiff and Consolidated Underwriters as defendant. Trial in the district court, with the aid of a jury, resulted in a verdict and judgment for Adams. On appeal to the Beaumont Court of Civil Appeals by Consolidated Underwriters the judgment of the district court was reversed, and the cause remanded to that court with instructions to dismiss the case. The judgment of the Court of Civil Appeals amounts to a rendition of the case for Consolidated Underwriters. Associate Justice Combs dissented from the opinion of the majority, contending that the judgment of the district court should be affirmed. The case is before this Court on writ of error granted on application of Adams. The opinions rendered by the Court of Civil Appeals make a comprehensive and correct statement of the facts and issues of this case. We refer to such opinions for such statement. 97 S.W.2d 323. We, however, will make a sufficient statement to constitute this opinion complete within itself.
Ed Adams was injured in the course of his employment as an employee of Kirby Lumber Company, Hon. McDonald Meachum. Receiver. Consolidated Underwriters, a corporation, defendant in error here, was then the employer's compensation insurance carrier. Notice of Adams' injury was duly and seasonably given to Adams' employer and Consolidated Underwriters. Within the time required by law Adams filed his claim for compensation with the Industrial Accident Board, naming Kirby Lumber Company as his employer, and Consolidated Underwriters as his employer's compensation insurance carrier. In due time the Board acted on Adams' claim, and allowed him compensation against Consolidated Underwriters in a small amount. Adams was dissatisfied with the final award of the Board, and in due time gave the statutory notice that he would not abide by the same, but would file suit in the proper court to set such award aside, and recover compensation. Up to this time all proceedings in this matter were in all respects regular, and in full compliance with our compensation statutes, Vernon's Ann.Civ.St. art. 8306 et seq.
The record in this case further shows that after the happening of the above events, Adams filed a suit in the District Court of Newton County, Texas, the purpose of which was to set aside the award of the Industrial Accident Board, and recover compensation for the injury adjudicated thereby. Adams' original petition in this suit substantially recited the facts above detailed, but made an error in the name of the compensation insurance carrier by inserting the word Casualty between the words Consolidated and Underwriters, and thereby named Consolidated Casualty Underwriters as defendant instead of Consolidated Underwriters, the correct corporate name of the insurance carrier of Adams' employer. This petition named A. D. Robertson, of Beaumont, Texas, as the agent of the defendant upon whom service could be had.
Citation was duly issued on the abovenamed petition and served on A. D. Robertson as the agent of the defendant sued. A. D. Robertson filed an affidavit stating, in effect, that he was not the agent of Consolidated Casualty Underwriters, or in any way connected therewith. After the filing of this affidavit Adams filed an amended petition in which he correctly named the defendant as Consolidated Underwriters, and named the same A. D. Robertson as the agent upon whom service could be had. Citation was issued on this amended petition and served on A. D. Robertson as agent of Consolidated Underwriters.
The original petition in this case was filed within twenty days after the giving by Adams of his notice that he...
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...is evident from the pleadings and process, such that the defendant could not have been misled. See, e.g., Adams v. Consol. Underwriters, 133 Tex. 26, 124 S.W.2d 840, 841 (1939) ("When a corporation intended to be sued is sued and served by a wrong corporate name ... and suffers judgment to ......
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