Indemnity Ins. Co. of North America v. McGee

• Citation: 356 S.W.2d 666,163 Tex. 412
• Decision Date: 04 April 1962
• Docket Number: No. A-8747,A-8747
• Parties: INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. C. R. McGEE, Respondent.
• Court: Supreme Court of Texas

Page 666

356 S.W.2d 666

163 Tex. 412

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. C. R. McGEE, Respondent.

No. A-8747.

Supreme Court of Texas.

April 4, 1962.

Rehearing Denied May 16, 1962.

Barnes & Barnes, Beaumont, for petitioner.

Stephenson, Stephenson & Thompson, Orange, for respondent.

HAMILTON, Justice.

This is suit brought by plaintiff (respondent here) under the Texas Workmen's Compensation Act to set aside an award of the Industrial Accident Board. The trial court set aside the award and entered judgment for the plaintiff finding him totally and permanently disabled and awarding compensation of $13,651.55. The insurance carrier appealed to the Tenth Court of Civil Appeals, and the judgment of the trial court was affirmed. 351 S.W.2d 359.

The plaintiff's injury resulted from his slipping or jumping off a crane while he was working on a construction job. The evidence is disputed as to whether this slip or fall caused only a hernia or a combination hernia and back injury. These facts, however, are immaterial, as this opinion turns on defendant's (petitioner's) first point of error, which is:

'The Court of Civil Appeals erred in affirming the Trial Court's action in ruling that the Judge was not disqualified to preside over the trial of this case wherein the trial judge was required to fix the attorney's fees, and he was a first cousin of Respondent's counsel.'

The facts pertinent to this point of error were brought out in a hearing on motion for new trial. The record shows that the plaintiff hired Woodson E. Dryden to represent him in this case. Mr. Dryden appeared in behalf of the plaintiff before the Industrial Accident Board and he also filed plaintiff's original petition in the 128th Judicial District Court, Orange County, Texas. At this point in the proceedings Mr. Dryden employed Mr. Ward Stephenson to handle the case.

It is an undisputed fact that Ward Stephenson and the trial judge are related within the third degree of consanguinity, as they are first cousins.

Mr. Stephenson filed the first, second and third amended original petitions for the plaintiff. Mr. Stephenson and his law partner, Mr. Marlin Thompson, conducted the plaintiff's case before the trial judge. However, the final judgment awarded one-fourth of plaintiff's recovery to Mr. Woodson Dryden only.

In the hearing on motion for new trial, Mr. Stephenson testified that there was no specific agreement between Mr. Dryden and himself as to fees. However, he indicated he would submit a statement of his fee to Mr. Dryden when the case was completed. He stated, * * * (W)hatever charges I made is the way we customarily do, to take into consideration the success, likewise, of the litigation and if we are successful in any case, we feel that we would be in a position to take that into consideration in assessing our charges.'

The issue to be decided in this case is whether plaintiff's attorney, Ward Stephenson, is a 'party' to this suit within the meaning of Article V, Sec. 11, Constitution of Texas, Vernon's Ann.St., and Article 15, Vernon's Texas Civil Statutes. Article 15 states:

'No judge or justice of the peace shall sit in any case wherein he may be interested or where either of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been counsel in the case. Const. Art. 5, Sec. 11.'

This Court held in the case of Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, that the plaintiff's attorney in a workmen's compensation case is a party to the suit. This decision was reached primarily because of the provision in Article 8306, § 7d, Vernon's Texas Civil Statutes, which requires the judge to award the attorney's fees out of the plaintiff's recovery. That opinion said:

'* * * The record discloses that the plaintiff and his attorney by their pleadings invoked the jurisdiction of the court for the decision of that issue (attorney's fees). The attorney was directly interested in the decision of the question. He was one of the contending parties as against the employee as to the value of the services rendered by him and the amount of the fee to be allowed therefor, and it was within the power of the judge to favor him in the decision of that question. It can hardly be said that he was not a party to and directly interested in the controversial issues thus presented. * * *'

See also Texas Employers' Insurance Ass'n v. Scroggins, Tex.Civ.App., 326 S.W.2d 606 (no writ hist.)

The Court of Civil Appeals does not quarrel with this reasoning, but in essence holds that Ward Stephenson was not a party to this suit because he was not the plaintiff's attorney. Rather, the Court of Civil Appeals looked upon Mr. Stephenson as an employee of Mr. Woodson E. Dryden, plaintiff's original attorney. It overruled the point of error now before us because it felt the evidence in the record reflected that Dryden employed Stephenson for a fee based on work performed, and that the final judgment awarded one-fourth of the recovery to Dryden and not Stephenson. Thus the court reasoned that Stephenson was not a party to the suit.

Paragraph 9 of Plaintiff's Third Amended Original Petition on which this suit was tried states:

'The plaintiff says that he has employed the attorneys whose names are signed to this petition to represent him in this behalf and has...