Mabry v. Aetna Cas. & Sur. Co.

• Decision Date: 11 May 1950
• Docket Number: No. 12191,12191
• Citation: 230 S.W.2d 572
• Parties: MABRY v. AETNA CASUALTY & SURETY CO.
• Court: Texas Court of Appeals

Page 572

230 S.W.2d 572

MABRY v. AETNA CASUALTY & SURETY CO.

No. 12191.

Court of Civil Appeals of Texas, Galveston.

May 11, 1950.

Rehearing Denied June 1, 1950.

Quinton Wright, Houston, for appellant.

Fulbright, Crooker, Freeman & Bates and James C. Watson, Houston, for appellee.

MONTEITH, Chief Justice.

This action was brought by appellant, Mrs. Ethel Mabry, for recovery from appellee, The Aetna Casualty & Surety Company, of one-half of a payment made to her husband, E. C. Mabry, by appellee, The Aetna Casualty & Surety Company, as compensation for an injury received by him in the course of his employment with the Ford, Bacon & Davis Construction Company, which carried compensation insurance with appellee. Appellee answered by defensive pleas and by a special plea that the compensation benefits to which E. C. Mabry was entitled were not community property until they had been paid, but were personal to the employee; and, further, that appellee was not bound by the judgment rendered in a divorce case filed by appellant against E. C. Mabry because it was not a party to the suit and the judgment was not binding upon it.

In a trial before the court without a jury, judgment was rendered denying appellant any recovery on her action.

At the request of appellant, the trial court made and caused to be filed his findings of fact and conclusions of law. They were excepted to by appellant.

The material facts in the case were agreed to and stipulated between the parties, with the exception of the value of the fee sought by appellant's counsel in the event he was found to be entitled to a fee.

The record reflects that appellant, Mrs. Ethel Mabry, and E. C. Mabry were husband and wife prior to October 14, 1947; that E. C. Mabry, who was employed by Ford, Bacon & Davis Construction Company in Texas City, Texas, sustained a compensable injury in the course of his employment with that firm; and that appellee herein was compensation carrier for Ford, Bacon & Davis Construction Company. Mabry filed his claim for compensation for his injury with the Industrial Accident Board. On August 19, 1948, while Mabry's compensation claim was pending before the Industrial Accident Board, Mrs. Mabry filed suit for divorce against him in the District Court of Jefferson County and asked for a division of the community property, including one-half of said compensation claim then pending. On August 20, 1948, Mrs. Mabry, through her attorney, notified appellee by letter that she had sued E. C. Mabry for divorce and for a division of their community property, including said compensation claim. On October 14, 1948, Mrs. Mabry was granted a divorce and, under the decree rendered, she was awarded one-half of said compensation claim. On November 18, 1948, the Industrial Accident Board approved a compromise settlement agreement between E. C. Mabry and appellee, under which he was to receive $3,600 in cash in settlement of his claim. On November 19, 1948, Mrs. Mabry's attorney mailed to appellee a certified copy of the divorce decree in which she was awarded a one-half interest in said compensation claim. On November 20, 1948, appellee paid to E. C. Mabry the $3,600 in payment of his claim for compensation. On February 2, 1949, appellant employed Quinton Wright, an attorney, to represent her in an action against appellee and agreed to pay him a reasonable fee therefor, and on February 3, 1949, he made a demand upon appellee for one-half of the said settlement. Appellee, The Aetna Casualty & Surety Company, was not a party to said divorce proceeding. Motion for new trial in the divorce proceeding was timely filed after the divorce decree was entered and was overruled on November 10, 1948. The court found in his findings of fact that Mrs. Mabry's attorney was not entitled to any part of said compensation claim as part of her damages. He found, however, that in the event she was entitled to recover attorney's fees as part of her damages, a reasonable attorney's fee would be $600.

The trial court concluded as a matter of law that appellee had the duty to deal solely with E. C. Mabry; that there had been no notice to appellee of any fraud or intent to defraud on the part of E. C. Mabry or to deprive Mrs. Mabry of any of the community property to which she was entitled, including any interest or claim she might have to his compensation benefits. The court found that appellee was a stranger to the divorce proceeding in the District Court of Jefferson County and that it was not bound by the decree rendered therein, even had the decree been final.

It is undisputed that E. C. Mabry sustained an injury to his knee on October 19, 1947, and that appellee accepted liability therefor and paid him compensation in the sum of $3,600. Final settlement of Mabry's claim for compensation benefits was approved by the Industrial Accident Board on November 18, 1948, and settlement was consummated on November 20, 1948. The injury to Mabry's knee was a 'specific injury', for which a definite maximum number of weeks of compensation was provided under Article 8306, sec. 12, R.C.S., Vernon's Ann.Civ.St. art. 8306, § 12. Sec. 3 of said Article 8306 provides that '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 * * * herein provided, and any attempt to assign the same shall be void.'

The divorce decree in favor of Mrs. Mabry against E. C. Mabry was a judicial compulsory assignment which was, we think, prohibited under the quoted part of sec. 3 of Article 8306.

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