Maryland Casualty Co. v. Baker

• Decision Date: 08 October 1925
• Docket Number: (No. 269.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 204
• Parties: MARYLAND CASUALTY CO. v. BAKER et al.
• Court: Texas Court of Appeals

277 S.W. 204

MARYLAND CASUALTY CO. v. BAKER et al.

(No. 269.)^*

Court of Civil Appeals of Texas. Waco.

October 8, 1925.

Rehearing Denied November 19, 1925.

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Suit by Mrs. M. A. Baker and others against the Maryland Casualty Company. From a judgment for plaintiffs, defendants appeal. Reversed and remanded, with directions.

Jos. W. Hale, of Waco, and Hitzfeld & Lynch, of San Antonio, for appellants.

Muse, McCutcheon & Muse, and Currie McCutcheon, all of Dallas, and Witt, Terrell & Witt, of Waco, for appellees.

Statement.

STANFORD, J.

During October, 1923, F. D. Tuttle was a subscriber to the Employers' Liability Act by virtue of a policy of insurance carried by him for the benefit of his employees with the Ocean Accident & Guarantee Corporation, Limited, and the Beverly Oil Syndicate was a subscriber under said act by virtue of a policy carried by it for the benefit of its employees with the Maryland Casualty Company. On the 31st day of October, 1923, M. A. Baker was in the service of one or the other of said employers, or both of them, and on said date, while engaged in such service, received an injury resulting in his death. Mrs. M. A. Baker, the surviving wife, presented one claim to the Industrial Accident Board for compensation against both said insurance orders; said claim being No. J-11462. The board, after hearing the evidence, made its award; the parts material to the question involved reading as follows:

"That at the time said injury was suffered, the said M. A. Baker was engaged in the employment of either the said F. D. Tuttle or the Beverly Oil Syndicate or both of them. That the relations between the said F. D. Tuttle and the said Beverly Oil Syndicate were so intermingled that it is impossible under the proofs submitted to determine with exactness which of the said employers the said M. A. Baker, deceased, was actually serving, or whether he was actually serving both of them at the time said fatal injury was sustained * * * and the policy of one or the other, and perhaps both of said employers actually covered the said M. A. Baker, deceased, at the time said fatal injury was inflicted. That, due to the confused state of the proofs with reference to whether both of said policies actually covered the said M. A. Baker at the time of said injury, or whether only one of them in fact covered him on said occasion, the board is of the opinion that the award that is hereafter made ought to be and the same is hereby made jointly and severally against both the Ocean Accident & Guarantee Corporation, Limited, and the said Maryland Casualty Company, and it is so ordered, adjudged, and decreed by the board."

The decree recited further:

"The board further finds that, while the award made here is joint and several against both the Ocean Accident & Guarantee Corporation, Limited, and the Maryland Casualty Company, and that the right of the claimant is made in whole and complete against each of said companies, yet it is not intended that there shall be a full payment of the award by each of said companies, or that there shall be a double recovery, and that, notwithstanding said joint and several character of said award, the payment of one full benefit by both of said companies together, or whether jointly and severally made, will inure to the benefit of both of said companies, and the payment of one full recovery in accordance with said award, whether made by one of said companies separately or all of them jointly, will be in full and final acquittance and discharge of the liability of all of said insurance companies."

This suit was filed in the district court of McLennan county by Mrs. Baker against the Maryland Casualty Company to enfore against said company the award rendered by the Industrial Accident Board against the Ocean Accident & Guarantee Corporation Limited, and the Maryland Casualty Company.

Appellant filed its plea in abatement and to the jurisdiction of the court in this case, setting up the following facts: (1) That within 20 days after the rendition of the award, statutory notice of appeal was given by the Ocean Accident & Guarantee Corporation, Limited, and that within 20 days after such notice suit was filed by said company, and by the Maryland Casualty Company as well, in the district court of Milam county, Tex. (the county in which the accident resulting in the death of M. A. Baker was alleged to have occurred) to set aside the said award. (2) That the said Maryland Casualty Company had likewise filed an intervening petition in the suit filed by the Ocean Accident & Guarantee Corporation, Limited. (3) That both these suits were still pending. (4) That Mrs. M. A. Baker had filed her plea in abatement and to the jurisdiction of the court in the said suit filed by the Maryland Casualty Company, but that this plea had never been acted upon. (5) That Mrs. Baker and her attorneys had filed their cross-action in the suit of the said Ocean Accident & Guarantee Corporation, Limited, setting up therein their claims for compensation and attorney's fees and for a trial de novo in that suit.

Upon this predicate, the defendant pleaded: (a) That the appeal duly perfected by the said Ocean Accident & Guarantee Corporation, Limited, from the board's award, operated to set aside the said award in toto and as to all parties, and that the award could not therefore constitute the subject-matter of any suit of which the court below could properly assume jurisdiction. (b) That the court could not properly assume jurisdiction of this suit until the question of jurisdiction was determined by the district court of Milam county, in which the said suit of the Maryland Casualty Company had been filed and was pending, since the court's jurisdiction of this cause depended upon the lack of jurisdiction of the district court of Milam county. (c) That, by filing their cross-action and setting up their claims for a trial de novo in the suit filed by the Ocean Accident & Guarantee Corporation, Limited, in the district court of Milam county, Tex., the plaintiffs and interveners herein had submitted their said claims to the jurisdiction of that court, and had estopped themselves to sue upon the award as a liquidated demand, though they had attempted in their said cross-action to reserve a right of action against the Maryland Casualty Company upon said award.

Upon the hearing of this plea it was agreed that the facts above recited were true, though it was expressly stipulated that no notice was given by the defendant, Maryland Casualty Company, within 20 days after the rendition of the award. The said plea was overruled, and defendant duly excepted. Appellant thereupon filed its original answer, setting up the defenses presented, in substance, in its plea in abatement and to the jurisdiction, and other matters not necessary to be here stated. The court sustained special exceptions to the appellant's defenses set up, and, after overruling appellant's motion for a continuance, the court rendered judgment in favor of appellees and against appellant for the principal sum of $8,000, with $60 interest, $960 penalty, and $3,000 attorney's fees....