Arter v. Southern Surety Co.

• Decision Date: 20 June 1930
• Docket Number: No. 3864.,3864.
• Parties: ARTER v. SOUTHERN SURETY CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

29 S.W.2d 847

ARTER v. SOUTHERN SURETY CO. et al.^*

No. 3864.

Court of Civil Appeals of Texas. Texarkana.

June 20, 1930.

Rehearing Denied June 26, 1930.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Suit by the Southern Surety Company and another against John J. Arter. Judgment for plaintiffs, and defendant appeals.

Reversed and rendered.

December 11, 1928, appellant, John J. Arter, then an employee of Gifford-Dill & Co., a corporation, suffered injury to his person. Finding that said Gifford-Dill & Co. was a "subscriber" within the meaning of the Workmen's Compensation Law (articles 8306-8309, R. S. 1925) carrying compensation insurance with appellee Southern Surety Company, also a corporation, and finding further that the injury to appellant was sustained in the course of his employment for said Gifford-Dill & Co. and totally incapacitated him "for the performance of labor" from said December 11, 1928, and would continue to so incapacitate him "for an indefinite period in the future," the Industrial Accident Board on May 3, 1929, made an order whereby it determined that appellant was entitled as against said Southern Surety Company to "compensation at the fixed rate of $12.12 per week for an indefinite period" from said December 11, 1928, "but in no event to continue longer than 401 weeks" from that date. Notice as follows of an appeal from said order, addressed to said Industrial Accident Board, was received by it May 21, 1929:

"You are hereby notified that the Southern Surety Company of New York does not and will not agree to comply with and abide by the award made by the Industrial Accident Board in the above entitled case on the 3d day of May, A. D. 1929, wherein compensation was awarded said John J. Arter at $12.12 per week and wherein a certain portion of which was awarded to Wm. V. Brown, attorney-at-law Texarkana, Texas. You are further notified that the Southern Surety Company of New York will bring suit in a court of competent jurisdiction within 30 days after the making of this notice, to set aside and hold for naught the said mentioned award. (Signed) Southern Surety Company and Southern Surety Company of New York, by A. A. Nowakosky."

This suit was commenced by a petition filed May 23, 1929. It was by said Southern Surety Company, alleged to be a corporation under the laws of Iowa, and by said Southern Surety Company of New York, alleged to be a corporation under the laws of New York, as plaintiffs, against appellant as defendant; and was, it was alleged in said petition, "by way of appeal from the Industrial Accident Board." By what he termed a "plea in bar, special exceptions and general demurrer," appellant questioned the jurisdiction of the court below to entertain appellees' suit, insisting it did not appear from the pleadings: (1) That notice of the injury to appellant was given nor that a claim for compensation for such injury was ever filed with the Industrial Accident Board; (2) that no notice was given by the Southern Surety Company of unwillingness to abide by the award of said board and its intention to appeal therefrom; and (3) that the notice given by the Southern Surety Company of New York of its unwillingness to abide by said award and its intention to appeal therefrom was not effective for any purpose because it was not a party to the proceedings before the board, and therefore not an "interested party" within the meaning of the statute. By other pleadings in the case appellant sought, in the event his plea and exceptions above referred to were sustained, and only in that event, to have the award of the board matured and to recover of appellee Southern Surety Company a penalty of 12 per cent. and attorney's fees in the sum of $1,500. And by still other pleadings appellant sought, in the event his plea and exceptions and his prayer to mature the board's award and for a penalty and attorney's fees were overruled, to recover judgment against both said surety companies for the amount of the compensation he claimed he was entitled to by the terms of said Workmen's Compensation Law. This appeal is from a judgment denying appellant any relief and in appellees' favor against appellant for costs.

Wm. V. Brown, of Texarkana, and Tomas G. Pollard, of Tyler, for appellant.

Horace C. Bishop, of Dallas, and Gentry & Gray, of Tyler, for appellees.

WILLSON, C. J. (after stating the case as above).

The contention first presented in appellant's brief is that the court below erred when he overruled the plea and exceptions questioning the jurisdiction of said court to hear and determine appellees' appeal from the award of the Industrial Accident Board. One ground of the contention, and the only one we have considered, is that it appeared no notice of such an appeal was given by the appellee Southern Surety Company, and that the notice...