Martin v. Consolidated Casualty Ins. Co., 10565.

• Decision Date: 26 November 1943
• Docket Number: No. 10565.,10565.
• Parties: MARTIN et al. v. CONSOLIDATED CASUALTY INS. CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

138 F.2d 896 (1943)

MARTIN et al. v. CONSOLIDATED CASUALTY INS. CO. et al.

No. 10565.

Circuit Court of Appeals, Fifth Circuit.

November 26, 1943.

W. E. Johnson, of Dallas, Tex., for appellants.

William M. Ryan, of Houston, Tex., and Thos. B. Ramey, of Tyler, Tex., for appellees.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellants, Mrs. Ova Martin, wife, and C. P. Martin and wife, Mary Martin, the parents of G. C. Martin, deceased, claimed against and obtained from Consolidated Casualty Insurance Co., the insurance carrier of Sinclair Prairie Oil Company, his employer, full satisfaction under the Texas Workmen's Compensation Act, Vernon's Ann.Civ.St.Tex. art. 8306 et seq., for his death resulting from aggravation by medical treatment of an injury occurring in the course of his employment. They then brought this suit¹ against the carrier and three physicians, both wife and parents claiming damages under Texas Death statutes, the wife alone claiming punitive damages under the Constitution of Texas. On request for admissions² under Rule 36, 28 U.S.C.A. following section 723c, plaintiffs admitted that they had filed claim for, and had been awarded, and obtained, judgment for, and had collected from Consolidated Casualty Insurance Company, the full compensation for death provided by the Texas Workmen's Compensation Statutes. Whereupon on the basis of the admissions which were treated by all the parties as in effect made part of plaintiffs' pleading, appellant, the insurance carrier, moved to dismiss on the ground that plaintiffs, having elected to claim against and obtain from it full compensation under the Texas Workmen's Compensation Act, were precluded by Sec. 3a of Art. 8306, Revised Civil Statutes of Texas³ from maintaining this suit.

The district judge, rejecting plaintiffs' contention that the insurance carrier was, or could be, a third party, that is, "some person other than the subscriber",⁴ held that plaintiffs, having elected to proceed against the association for compensation for the death of the decedent and having obtained judgment for such compensation, could not proceed against it in a suit for compensatory damages. He, therefore, sustained the motion as to, and dismissed all claims for, compensatory damages, but denied it, and retained the suit, as to the claims for exemplary damages. Thereafter, one of the physicians, Dr. Faust, moved to dismiss on the ground that by plaintiffs' own allegations and admissions, what he did was done as the agent of the insurance carrier, and the insurance carrier not being liable to such suit, he, as its agent, could not be. This motion, as the insurance carrier's motion had been, was sustained by the district judge as to the claim for compensatory damages. It was denied as to the claim for exemplary damages, and the suit was retained on the docket as to that claim. Plaintiffs, admitting that decisions from other states⁵ support the trial court's holding, are here insisting that, under Texas law and particularly under Hoffman v. Houston Clinic, Tex.Civ.App., 41 S.W.2d 134, and Pedigo & Pedigo v. Croom, Tex.Civ.App., 37 S.W.2d 1074, the insurance carrier and the physicians occupy the status of third parties and are not "agents, servants or employees" within the meaning of the Texas Workmen's Compensation Act. Cf. Haynes v. Taylor, Tex.Com.App., 35 S.W.2d 104; Standard Accident Ins. Co. v. Pennsylvania Car. Co., 5 Cir., 49 F.2d 73, and cases cited.

Appellees move to dismiss the appeal because: the orders appealed from are not final appealable judgments; each disposes only of the particular defendant named in the motion, leaving the case undisposed of as to other defendants; and each, instead of disposing of the claim for damages for death of the decedent, merely constitutes a preliminary ruling as to the damages recoverable. As to appellees' first ground that the suit is on one indivisible claim, appellants insist that this is not so. It presents, they say, two separate and distinct claims. One of these is a claim on a statutory cause of action brought by all the plaintiffs under the Death Statutes of Texas, Art. 4671-4678, R. C. S. of Texas, Vernon's Ann.Civ.St. arts. 4671-4678, and is limited to actual or compensatory damages, the other is a claim on a constitutional cause of action, brought by the wife alone under the Constitution of Texas.⁶

Appellants insist that there is no substance in appellees' second point that the suit was against the defendants as joint tort feasors, the orders appealed from did not dispose of all of them, and, therefore, within the rule of Hohorst v. Hamburg American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443, and Hunteman v. New Orleans Public Service, Inc., 5 Cir., 119 F.2d 465, the judgment was not final. In support, they point to the supplemental record showing that the cause is no longer pending as to the two defendants named in the petition but not dismissed in the orders appealed from; that one of them was never served; that the other, though served in, has, since the entry of the order appealed from and before he had filed any answer in the suit, been dismissed from it.

We agree that the appeal should not be dismissed. The Texas cases leave no doubt that plaintiffs' petition presented two distinct claims, one for exemplary damages based on the Texas Constitution, Robertson v. Magnolia Petroleum Co., Tex.Civ.App., 255 S.W. 223; Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409; the other for compensatory damages for wrongful death based on the Texas death statute, Gutierrez v. El Paso & N. E. R. R. Co., 102 Tex. 378, 117 S.W. 426; Kirby Lumber Co.'s Receivers v. Owens, 56 Tex.Civ.App. 370, 120 S.W. 936; Elliott v. City of Brownwood, 106 Tex. 292, 166 S.W. 1129; Childs v. Childs, Tex.Civ.App., 107 S.W.2d 703. The order disposing of one of these claims though leaving the other undisposed of was final and appealable. Sidis v. F.-R. Publishing Co., 2 Cir., 113 F.2d 806, 807, 138 A.L.R. 15; Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478. Appellees' second point, that the appeal must be dismissed because the cause is still pending as to the other defendants not named in the orders of dismissal is no better taken for the supplemental record shows that this is not in fact so. For us to order the case reversed, on the supposition, shown by the supplemental record to be erroneous, that the cause is still pending as to other defendants, would be a vain and foolish thing to do.

On the merits, however, the law is with the appellees. It is settled law in Texas that the insurer stands in the place of the employer and may be held accountable only as the employer may be, and it is not even contended by appellants that an employer who had provided and paid compensation could be held liable in a suit for compensatory damages for his own acts or omissions or those of his servants or agents. Lindsey v. Texas & N. O. R. Co., Tex.Civ.App., 87 S.W.2d 864. Without regard then to the authorities cited from other states, it is sufficient to say that under settled Texas law, no case against the insurance carrier was shown.

As to Dr. Faust, we agree with appellants that in determining whether he is suable as a third party, we must follow the lead of the Texas courts. But we cannot agree that the two cases they cite are controlling here. In neither of those cases was it alleged, as here, that the physicians did what they did upon the express instruction, and, therefore, as "agents, servants or employees" of the insurance company or the employer, but quite the contrary. In Pedigo's case, it was...