Fidelity Union Casualty Co. v. Dapperman

• Decision Date: 21 October 1932
• Docket Number: No. 3729.,3729.
• Citation: 53 S.W.2d 845
• Parties: FIDELITY UNION CASUALTY CO. v. DAPPERMAN.
• Court: Texas Court of Appeals

53 S.W.2d 845

FIDELITY UNION CASUALTY CO. v. DAPPERMAN.

No. 3729.

Court of Civil Appeals of Texas. Amarillo.

October 21, 1932.

Rehearing Denied November 9, 1932.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by L. L. Dapperman, by next friends, against the Fidelity Union Casualty Company, to set aside an award of the Industrial Accident Board denying claim for additional compensation of the said L. L. Dapperman, an employee of the United States Zinc Company. Judgment for plaintiff, and defendant appeals. On appellee's motion to require issuance of mandate without payment of costs.

Motion granted.

See, also, 47 S.W.(2d) 408.

Dorenfield, Foster & Fullingim, of Amarillo, for appellant.

Works & Bassett, of Amarillo, for appellee.

MARTIN, J.

Appellee heretofore made a motion in this court to require the issuance of a mandate without payment of costs. This motion was overruled without written opinion, on the authority of Texas Employers' Insurance Association v. Davidson (Tex. Civ. App.) 290 S. W. 871, and some older authorities of like character.

Since we have concluded that we were in error, we deem it necessary to here reproduce sufficient of the record to illustrate the basis of our viewpoint as to the law.

L. L. Dapperman, acting by and through his mother, Priscilla Koester, and her husband, H. C. Koester, as his next friends, filed suit against appellant, naming himself as plaintiff therein. His petition contains the following paragraph: "That it became necessary for plaintiff to employ attorneys to represent his said claim before said Board and before the courts on appeal, he having employed before he so became insane Works & Bassett, a law firm composed of F. P. Works and Jas. W. Bassett, and assigned to them an undivided one-third of all compensation received in this suit in full payment of their attorneys' fees."

On the trial he introduced a written contract with his said attorneys which, for the purpose of this opinion, we will assume supported the allegations just quoted.

The judgment rendered contains, in part, the following recitals: "It further appearing to the Court that said plaintiff L. L. Dapperman, is a non compos mentis, and that his interests in the claim and cause of action involved herein have been and are now being represented by F. P. Works and Jas. W. Bassett * * * and that their services have been and are necessary herein and that reasonable compensation therefor is one-third of the recovery herein awarded and that said one-third of the recovery herein should be adjudged to said F. P. Works and Jas. W. Bassett; it is further ordered and decreed by the Court that one-third of the amount recovered herein by the plaintiff L. L. Dapperman, to-wit: the sum of $1609.46, be and the same is hereby adjudged to said F. P. Works and Jas. W. Bassett, with full authority in said F. P. Works and Jas. W. Bassett to receipt for and discharge said recovery herein * * * and the said defendant Fidelity Union Casualty Company is hereby directed to make payment of said amount direct to said attorneys."

An affidavit of inability to pay costs was filed in behalf of Dapperman alone. Appellant contends that, since Works & Bassett were parties to the suit and to the judgment, we are not authorized to issue mandate, in the absence of an affidavit of inability to pay costs, which includes the said attorneys.

A careful consideration of the terms of the Workmen's Compensation Law of Texas (Rev. St. 1925, art. 8306 et seq., as amended) has convinced us that we erred in our construction of the judgment herein, and that, if the case last cited justified our action, the eminent judge who wrote the opinion therein failed to take note of the matters to which we now call attention.

We quote here from the statute:

"All compensation allowed under the succeeding sections herein shall be exempt from garnishment, attachment, judgment and all other suits or claims, and no such right of action and no such compensation, and no part thereof or of either shall be assignable, except as otherwise herein provided, and any attempt to assign the same shall be void. * * *

"All fees of attorneys for representing claimants before the board under the provisions of this law shall be subject to the approval of the board. * * * After the approval, as first above provided for, if the association be notified in writing of such claim or agreement for legal services, the same shall be a lien against any amount thereafter to be paid as compensation; provided, that where the employee's compensation is payable by the association in periodical installments the Board shall fix at the time of approval the proportion of each installment to be paid on account of said legal services.

"For representing the interest of any claimant in any manner carried from the board into the courts, it shall be lawful for the attorney representing such interest to contract with any beneficiary under this law for an attorney's fee for such representation, not to exceed one third of the amount recovered, such fee for services so rendered...