Hartford Accident & Indemnity Co. v. Clark

• Citation: 126 S.W.2d 799
• Decision Date: 16 February 1939
• Docket Number: No. 2086.,2086.
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. CLARK.
• Court: Court of Appeals of Texas

126 S.W.2d 799

HARTFORD ACCIDENT & INDEMNITY CO. v. CLARK.

No. 2086.

Court of Civil Appeals of Texas. Waco.

February 16, 1939.

Rehearing Denied April 6, 1939.

Appeal from District Court, Nineteenth Judicial District, McLennan County; R B. Stanford, Judge.

Suit under the Workmen's Compensation Act by Melvin Clark to set aside an award of the Industrial Accident Board in favor of the Hartford Accident & Indemnity Company. From a judgment for Melvin Clark, the Hartford Accident & Indemnity Company appeals.

Affirmed.

Harris, Howell & Gordon, of Waco, for appellant.

George Clark and Claude Miller, both of Waco, for appellee.

ALEXANDER, Justice.

This is a workmen's compensation case. Judgment was for the employee. The insurance company appealed.

Appellant's first contention is that the trial court erred in failing to grant its petition of removal to the Federal Court on account of diversity of citizenship. In his original petition the plaintiff alleged total and permanent disability and sought a lump sum settlement on a basis of an average weekly wage of $18 for a period of 401 weeks. He did not allege specifically the amount of the recovery to which he was entitled, but, according to the facts alleged, the amount was within the jurisdiction of the Federal Court. Appellant gave notice of intention to file petition for removal, but, before it was filed, the plaintiff filed an amended petition alleging the same facts but praying for a lump sum judgment for only $2,999. Later, the insurance company filed its petition for removal but same was refused by the trial court. The company then caused a transcript of the proceedings, including petition for removal, to be filed in the Federal Court and sought an injunction restraining the trial of the case in the state court. Upon the hearing in the Federal Court that court concluded that, since the plaintiff in the state court had voluntarily reduced the amount of its claim below $3,000 prior to the filing of the petition for removal, the Federal Court never acquired jurisdiction of the suit. Consequently, the Federal District Court overruled the petition for removal and injunction and dismissed the proceedings. That decree has never been altered or set aside. The question now before this court is whether the state court erred in refusing to transfer the proceedings to the Federal Court. We do not deem it necessary for us to here determine whether or not the suit was removable in the first instance, for, in our opinion, the judgment of the Federal District Court dismissing the petition for removal foreclosed and forever settled the question as to whether the suit could be removed to the Federal Court. Whether or not the defendant had a right to remove the suit to the United States District Court involved a federal question. The Federal Court had full authority to determine the issue, and, when it determined the question against the insurance company, its decree therein, which was never altered or set aside, became binding on the parties and forever settled the question. Henderson v. Cabell, 83 Tex. 541, 19 S.W. 287; Chesapeake & O. R. R. Co. v. McCabe, 213 U.S. 207, 29 Sup Ct. 430, 53 L.Ed. 765. The Federal Court has refused to take jurisdiction of the suit and if we were to now hold that the state court was without jurisdiction to try the cause, the plaintiff would be left without any forum to which he could resort for the determination of his rights. The issue does not involve any fraud upon the jurisdiction of any state court, for the trial court would have had jurisdiction of the suit regardless of whether the plaintiff had demanded the full amount to which he was entitled under the facts alleged or only the amount actually prayed for in his petition. His election to accept less than he was entitled to resulted in no injury to appellant. This assignment is overruled.

Appellant contends that plaintiff failed to sufficiently allege that he was engaged in the usual course of the business of the employer at the time of his injuries. He did not so allege in so many words, but he did allege that at the time of his injury he was an employee of the Cities Service Oil Company, the employer; that he was an employee subject to and within the meaning of and entitled to the benefits of the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq.; that his injuries were sustained as the result of an accident within the meaning of the Workmen's Compensation Law; that at the time of the accident he was acting within the scope of his employment and was performing a service for his said employer necessarily connected with...