Industrial Generating Co. v. Jenkins, 11430

• Decision Date: 07 December 1966
• Docket Number: No. 11430,11430
• Citation: 410 S.W.2d 658
• Court: Texas Court of Appeals
• Parties: INDUSTRIAL GENERATING CO., Appellant, v. James W. JENKINS, Appellee. . Austin

Page 658

410 S.W.2d 658

INDUSTRIAL GENERATING CO., Appellant, v. James W. JENKINS, Appellee.

No. 11430.

Court of Civil Appeals of Texas Austin.

Dec. 7, 1966.

Rehearing Denied Jan. 11, 1967.

Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, Burford, Ryburn & Ford, Logan Ford, Spencer C. Relyea, III, Dallas, for appellant.

Barkley, Cutcher & Alderson, James L. Cutcher, Taylor, for appellee.

HUGHES, Justice.

This attempted appeal is by way of writ of error proceedings the purpose of which is to review a judgment rendered in cause styled James W. Jenkins v. Pan American Life Insurance Company, No. 15,461, on the docket of the District Court of Milam County. The defendant in that suit, and the only defendant, Pan American Life Insurance Company, did not perfect an appeal from such judgment.

We quote from appellant's Petition for Writ of Error the following as indicating the basis upon which it asserts a right to appeal from the judgment entered in this

'The Court, in the above numbered and entitled cause, rendered and entered a judgment on December 10, 1965, recorded in Volume Q page 632--633 of the Minutes of the District Court of Milam County, Texas, where James W. Jenkins is plaintiff and Pan American Life Insurance Company is defendant. This judgment purports to fix the number of installments within which the proceeds of a group insurance policy recovered from defendant by plaintiff herein would be paid, although the right to determine such installments under the contract of insurance upon which this motion is based is vested solely in this petitioner. In spite of the fact that this petitioner was a party to the insurance contract upon which this action is based, was conferred the right to fix the installments of any proceeds paid thereunder, and purchased and paid for such right by contributing to the premiums paid thereunder, petitioner was not joined as a party defendant, was not served with citation and was not represented by counsel upon trial of the cause. Petitioner as a necessary and indispensable party to this action therefore has the right to file this application for writ of error to bring all errors of law committed by the trial court before this appellate court.'

The record shows that appellee, James W. Jenkins, sued Pan American Life Insurance Company to recover benefits under a group policy of insurance issued to his employer, Industrial Generating Company, alleging that he sustained accidental injury while working as an employee of Industrial. Appellee's Petition contained the following allegation:

'Plaintiff would further show unto the Court that the stipulations in said policy provide that such benefits, in the sum of FOURTEEN THOUSAND AND No/100 ($14,000.00) DOLLARS, for total and permanent disability should be paid in a fixed number of monthly installments chosen by Plaintiff's employer, Industrial Generating Company. However, Plaintiff would show that he is totally and permanently disabled and is entitled to the full sum of such benefits and the same should be paid in a lump sum. However, in the alternative, if it should be found that Plaintiff is not entitled to receive said benefits in a lump sum under said policy, then and in that event Plaintiff would show unto the Court that the said employer, Industrial Generating Company, is prejudiced against this Plaintiff and that the agents, servants and employees of the said Industrial Generating Company, who would normally be the proper persons to fix the number of monthly installments under said policy, are also agents, servants and employees of the Pan American Life Insurance Company and, therefore, Plaintiff requests this Honorable Court to set the number of installments for Plaintiff herein.'

The insurance policy sued on provided that benefits under it should be paid '* * * in a fixed number of monthly installments chosen by the Employe from the following table, but extending over a period of not less than two years. * * *'

Pan American questioned the absence of Industrial by special exception and by motion for judgment notwithstanding the verdict contending that Industrial was a necessary and indispensable party. The exception and motion were overruled.

Following trial to a jury, the court entered an interlocutory judgment from which we quote:

'The Court finds that the said policy of insurance designates Industrial Generating Company of Rockdale, Texas, as the employer under the terms of said policy to choose the number of installments in which the insurance is to be paid and the Court hereby orders the Clerk of this Court to furnish the said Industrial Generating Company a certified copy of this Interlocutory Decree and to request the said Industrial Generating Company to designate, in writing, the number of installments in which the insurance should be paid and to furnish a copy of the same to the Court and to all attorneys of record in this cause on or before 4th day of September, 1965.

It is further ORDERED that a hearing should be had in this cause at ten O'clock A.M. on September 10th, 1965, at which time the Court will determine all issues pertaining to the amount of recovery, the manner of payment of same and any and all other issues raised by the pleadings on file herein.'

Although Industrial was notified as directed by the court, it failed to respond and the court entered judgment ordering benefits totaling $14,762.28, plus penalty and attorney's fees, to be paid appellee over a period of five years in monthly installments of $254.66, commencing as of November 15, 1960.

Appellee has moved to dismiss the appeal of Industrial on the ground that it was not a party to the suit below and has no right of appeal.

Appellant replied to this motion by stating that the motion to dismiss goes to the merits of its petition for writ of error and that ruling on the motion should be postponed until after briefs were filed and oral arguments made. Appellant filed its original brief but in it we find no point directed to its right of appeal and no discussion of the question. It also filed a reply to appellee's brief, but it, too, is silent regarding the motion to dismiss.

By a post submission brief, appellant asserts that it is entitled to appeal by writ of error since it is 'clearly' a party within the meaning of Arts. 2249, 2249a, 2250, 2251, 2255, Vernon's Ann.Tex.Civ.St., and Rules 352 and 363, Texas Rules of Civil Procedure, and cites Ambassador Oil Corp. v. Robertson, 384 S.W.2d 752, Tex.Civ.App. (Austin), writ ref., n.r.e., Robertson v. Blackwell Zinc Co., 390 S.W.2d 472, Tex.Sup.Ct., and Specia v. Specia, 292 S.W.2d 818, Tex.Civ.App. (San Antonio), writ ref., n.r.e. as supporting its conclusion.

Ambassador is not in point. It was a class suit brought under the provisions of Rule 42, T.R.C.P. It was held that a non-cited, nonappearing, member of the class could appeal. The suit below was not a class suit. Pan American and Industrial do not constitute a class '* * * so numerous as to make it impracticable to bring them all before the Court' as required by Rule 42.

Specia is a will contest. ¹ The executors named in the will, Ben Specia, Jr. and G. J. Luchese, filed application in the County Court for its probate. A contest, on the ground of lack of testamentary capacity of testator was filed by Charles Specia. The will was admitted to probate in the County Court, but denied probate in the District Court. the executors did not appeal. David Specia, one of the principal beneficiaries under the will, perfected an appeal by writ of error. The court held David Specia to be a party and...