Doty v. Travelers Ins. Co., C. A. No. 112.

• Decision Date: 16 January 1940
• Docket Number: C. A. No. 112.
• Citation: 31 F. Supp. 186
• Parties: DOTY et al. v. TRAVELERS INS. CO.
• Court: U.S. District Court — Southern District of Texas

31 F. Supp. 186

DOTY et al. v. TRAVELERS INS. CO.

C. A. No. 112.

District Court, S. D. Texas, Houston Division.

January 16, 1940.

Nichols & Bailey (H. J. Nichols), of Houston, Tex., for plaintiffs.

Baker, Botts, Andrews & Wharton, and Denman Moody, all of Houston, Tex., for defendant.

KENNERLY, District Judge.

This is a suit under the Texas Workmen's Compensation Law (Title 130, Texas Revised Civil Statutes of 1925 and Amendments. Vernon's Annotated Texas Civil Statutes, Articles 8306 to 8309) by plaintiffs, Mary Doty and her husband, James Doty, citizens of Texas, against The Travelers Insurance Company, a citizen of Connecticut, to recover compensation, alleged to amount to more than $3,000 under such law, for the death of Mary Doty's son, Elbert Spencer. It is claimed that Spencer's death was caused by an injury suffered while in the employ of the General American Tank Storage Terminals and during the course of such employment. It is claimed that defendant, The Travelers Insurance Company, was the insurer of the liability of the Storage Terminals under said law.

At the pre-trial hearing, a stipulation as to some of the facts was entered into between plaintiffs and defendant, and approved by the court. The portions thereof necessary to be considered in deciding the questions here presented are as follows:

"On June 9, 1938, and at all times material hereto, General American Tank Storage Terminals was entitled to be and was a subscriber to the Texas Workmen's Compensation Act, and on said date, and at all times material hereto, defendant had issued in accordance with the terms and provisions of the Texas Workmen's Compensation Act, a policy of Workmen's Compensation Insurance to General American Tank Storage Terminals to cover such of its employees within the State of Texas as were entitled to compensation under the law.

"On or about June 8, 1938, Elbert Spencer received injuries in the course of his employment with General American Tank Storage Terminals and defendant had actual notice of said injuries within thirty (30) days thereafter.

"On July 12, 1938, Elbert Spencer and defendant, The Travelers Insurance Company, entered into a compromise settlement agreement by the terms of which Elbert Spencer settled and compromised with General American Tank Storage Terminals and The Travelers Insurance Company all claims which he had under the Workmen's Compensation Act.

"The compromise settlement agreement above mentioned was duly submitted in accordance with law to the Industrial Accident Board and in all things approved by the Board, and thereafter Elbert Spencer executed a compromise settlement receipt and was paid by the Travelers Insurance Company the sum of Seventy-five Dollars ($75.00) in full settlement of his claims. In the foregoing proceedings, Elbert Spencer was represented by J. Leonard Gotsdiner, an attorney of Houston, Texas, of his own selection.

"Elbert Spencer was legally married to Leatha Spencer on December 20, 1937. On or about the first part of January, 1938, Leatha Spencer left and moved to Baltimore, Maryland, where she now resides. Six months after the abandonment, and on June 8, 1938, Elbert Spencer received the injuries complained of. The said Elbert Spencer was, at the time of his injury and at the date of his death, twenty-two years of age.

"Elbert Spencer also left surviving him a mother and stepfather — Mary and James Doty—, three brothers, J. D., L. B., and King, and a sister, Viola. Elbert and Leatha Spencer never had any children.

"On or about January 13, 1939, plaintiffs — Mary and James Doty — filed notice and claim before the Industrial Accident Board of the State of Texas for compensation for the death of Elbert Spencer, numbered X-20850, styled Elbert Spencer, deceased, v. General American Tank Storage Terminals, Employer, The Travelers Insurance Company, Insurer, of which claim for compensation defendant had timely notice. On February 27, 1939, the Industrial Accident Board of the State of Texas made and entered a final award on said claim for compensation in which it denied a recovery.

"On March 1, 1939, and within twenty (20) days after the final award, plaintiffs filed notice with the Industrial Accident Board of the State of Texas that they would not abide by the ruling and decision of the Board, and thereafter, within twenty (20) days after such notice of intention to appeal, plaintiffs filed this action in the District Court of Harris County, Texas, 113th Judicial District of Texas, being No. 256,108, this being the county in which the injuries were sustained. Said action was thereafter duly and legally transferred to this court by the defendant upon diversity of citizenship."

Defendant has filed a motion for judgment in its favor on the facts so stipulated. Defendant calls its motion a motion for...