Employer's Reinsurance Corporation v. Brock

• Decision Date: 13 April 1934
• Docket Number: No. 1254.,1254.
• Parties: EMPLOYER'S REINSURANCE CORPORATION v. BROCK.
• Court: Texas Court of Appeals

74 S.W.2d 435

EMPLOYER'S REINSURANCE CORPORATION v. BROCK.

No. 1254.

Court of Civil Appeals of Texas. Eastland.

April 13, 1934.

Rehearing Denied July 13, 1934.

Appeal from District Court, Haskell County; Clyde Grissom, Judge.

Suit by Joe Brock against the Employer's Insurance Corporation to set aside an adverse award under the Workmen's Compensation Act. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wilson, Randal & Kilpatrick, of Lubbock, and Ratliff & Ratliff, of Haskell, for appellant.

Smith & Smith, of Anson, and M. Smith, of Hamlin, for appellee.

LESLIE, Justice.

This suit arises under the Workmen's Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended), and from a lump-sum judgment in favor of the employee Joe Brock, the appeal is prosecuted by the insurance company. The facts material to the disposition of the appeal will be stated in the course of the opinion.

The suit was filed March 21, 1933, and the defendant was alleged to be "a corporation operating under the laws of the State of Missouri, and engaged in writing Workmen's Compensation insurance in the State of Texas under and by virtue of a permit issued to it as provided by the laws of said State and maintaining an office in the town of Houston, Harris County, Texas, with John R. Young in charge thereof as the duly authorized attorney for service of legal process in Texas upon (whom) service of process may be had in this cause." Citation issued to the sheriff of Harris county, commanding him to summon the "Employer's Reinsurance Corporation, a private corporation" to appear before the district court of Haskell county at the next regular term, beginning April 17, 1933. Neither the name of the agent, nor his character as such, was recited in the citation proper, but attached to the citation was a certified copy of the plaintiff's original petition, and reference to the same was made for the nature of the plaintiff's demand. The citation further read "and you will deliver to said defendant Employer's Reinsurance Corporation, a corporation, in person a true copy of this citation, together with accompanying certified copy of the plaintiff's original petition."

The sheriff's original returns indicated that the citation was served on the defendant in the following manner: "Received this writ on the 30th day of March, A. D. 1933, at 2 o'clock P. M., and executed the same in Houston, Harris County, Texas, on the 31st day of March, A. D. 1933, at 3:50 o'clock P. M., by summoning the Employer's Reinsurance Corporation, a corporation, the within named defendant, by delivering John R. Young, agent of the said Employer's Reinsurance Corporation in person a true copy of this writ, together with certified copy of plaintiff's original petition."

The first term of court after the filing of the suit convened April 17, 1933. No answer was filed by the defendant, and on April 22, 1933, the court granted plaintiff a judgment, reciting the appearance of the plaintiff and the default of the defendant. The plaintiff introduced testimony in support of his cause of action, and the statement of facts is brought up on this appeal. On April 29, 1933, the appellant filed a motion seeking to have the judgment set aside and be granted a trial on the merits of the case. On May 9, 1933, the appellant filed an amended motion to set the judgment aside, and a hearing on that motion was had on May 19, 1933, at which time the court overruled the same. After the judgment by default was granted, and prior to the overruling of the motion to set same aside, the court permitted the plaintiff to have the sheriff of Harris county amend his original return on the citation, and as amended it reads:

"Sheriff's Return (Amended)

"Received this writ on the 30th day of March A. D. 1933, at 2 o'clock P. M., and executed same in Houston, Harris County, Texas, on the 31st day of March, A. D. 1933, at 3:50 o'clock P. M., by summoning the Employer's Reinsurance Corporation, a corporation, the within named defendant by delivering to John R. Young, authorized attorney for service and local agent of said Employer's Reinsurance Corporation, in person a true copy of this writ together with certified copy of the plaintiff's original petition."

When the amended motion to set aside the judgment was before the court for consideration, the amended return was called to his attention. Other matters were brought out at the hearing on the motion, but they are unimportant and immaterial to the question before us. The service and return of process on the defendant is under attack. The question involves the validity of the judgment on the ground that the trial court was without jurisdiction to render the same, in that at the time of its rendition, no proof was offered respecting the agency of the said John R. Young, and that the judgment was without support in the pleadings, citation, sheriff's return, or the record. The proposition will now be considered.

The defendant being a foreign corporation, service could only be had upon it under and by virtue of article 2031, R. S. 1925, which reads as follows: "In suits against a foreign corporation, joint stock company or association, or acting corporation or association, process may be served on the president, vice president, secretary, treasurer, or general manager, and in any cause of action arising within this State, process may also be served upon any local or traveling agent, or traveling salesmen of such corporation, joint stock company or association, or acting corporation or association in this State."

As above stated, the sheriff's return on the citation was amended prior to the hearing on the motion to set the judgment aside. The right to so amend is not challenged, and such seems to be the undoubted right of the interested litigant or the officer. Article 2044, R. S. 1925; El Paso & S. W. R. Co. v. Kelly (Tex. Civ. App.) 83 S. W. 855, 858; Id., 99 Tex. 87, 87 S. W. 660; Delaware Ins. Co. v. Hutto (Tex Civ. App.) 159 S. W. 73; Canadian & American Mortg. & Trust Co. v. Kyser, 7 Tex. Civ. App. 475, 27 S. W. 280; Wilson v. Wagner Supply Co. (Tex. Civ. App.) 260 S. W. 932; 21 R. C. L. p. 1329, § 277 et seq. The citation is regular and reflects the essential elements of the petition. The return, as amended, meets in all respects the requirements of the law showing legal service on the defendant through its "local agent." As amended, the return specifically recites that service was had on the defendant through its "local agent John R. Young." In view of the amended return it was unnecessary for the plaintiff to introduce proof of the agency of said Young. The amended return related back to the date of the original. Hence, there is no merit in the contention that the plaintiff failed to introduce proof that Young was, in fact, the defendant's local agent. The plaintiff was under no legal duty to do so. The sheriff, in the discharge of his duty, sought out said Young, identified him as the defendant's local agent, and officially certified to that fact in his return. Under this state of the record, the judgment by default was warranted without further showing or proof of agency on the part of the plaintiff. Galveston, H. & S. A. Ry. Co. v. Gage, 63 Tex. 568; Gatlin v. Dibrell, 74 Tex. 36, 11 S. W. 908, 909; Houston & T. C. R. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808; Illinois Steel Co. v. San Antonio & G. S. R. Co. (C. C.) 67 F. 561; Missouri Pacific Ry. Co. v. Wise, 3 Willson, Civ. Cas. Ct. App. p. 461, § 386; El Paso & S. W. R. Co. v. Kelly, supra; Grayce Oil Co. v. Varner (Tex. Civ. App.) 260 S. W. 883; Delaware Ins. Co. v. Hutto, supra; First National Bank v. Latham, 37 Okl. 286, 132 P. 891.

The right to have the sheriff amend his return being unquestioned, and that return disclosing service on the defendant through its "local agent" as prescribed by the statute, the burden of disproving that agency fell on the defendant who was seeking to overthrow the service. From the above authorities this clearly appears to be the rule of law under such circumstances. In the case of El Paso & S. W. R. Co. v. Kelly, supra, "Neither the local agent nor the general manager" of the corporation was named in the plaintiff's petition, nor citation. The sheriff's return showed service on each of the defendants' said agents. The sufficiency of the citation and service was there questioned, and in disposing of the point the court said: "While it is a general rule that the return on a citation, made by an officer competent to serve the writ, of the fact and mode of service, if in due form, is ordinarily conclusive upon the parties to the record, yet it seems that in this state, in a suit against a corporation, when its local agent or other officer upon whom service may be had is not named in the citation, the sheriff's return showing service upon such agent or officer is not conclusive of the fact that he was such agent or officer, but such fact may be put in issue (G., H. & S. A. Ry. Co. v. Gage, 63 Tex. 568); and that, if judgment by default has been taken against a corporation, it can, either by motion or original suit, have the judgment set aside by proving that the person cited was not its agent or officer authorized by law upon whom service can be had. H. & T. C. Ry. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808." (Italics ours.)

In the case of Galveston, H. & S. A. Ry. Co. v. Gage, supra, neither the petition nor the citation stated that there was a local agent of the corporation upon whom service could be had, and the sufficiency of the service was questioned upon these grounds, as well as the insufficiency of the sheriff's returns. The sheriff's return stated that the process was served by delivering "a true copy of this citation to F. Voelker in person, the local agent representing the within named defendant * * * Railroad Company, in the county of Uvalde." Our Supreme Court held this to meet the requirements of law. It quoted approvingly...