Maryland Casualty Co. v. Latham, 5599.
| Decision Date | 18 June 1930 |
| Docket Number | No. 5599.,5599. |
| Parties | MARYLAND CASUALTY CO. v. LATHAM et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Y. D. Mathes, of Houston, Tex. (Baker, Botts, Parker & Garwood, of Houston, Tex., on the brief), for appellant.
Roy C. Sewell and Laurence Walton Morris, both of Houston, Tex., for appellees.
Before WALKER, BRYAN and FOSTER, Circuit Judges.
On April 18, 1928, G. F. Latham obtained an award from the Industrial Accident Board of Texas of $20 per week from August 1, 1927, for a period not exceeding 401 weeks, in a proceeding against S. H. Kress & Co., his employer, and the Maryland Casualty Company as insurer. A stated percentage of the award was allotted to H. J. Nichols, his attorney.
The Texas Workmen's Compensation Law () provides in substance as follows:
Any interested party who does not consent to a final decision of the Industrial Accident Board shall give notice to the adverse party within 20 days, and within 20 days thereafter bring a suit in the county where the injury occurred, to set it aside. The court shall determine the issues instead of the board on a trial de novo. If any party fails to institute the suit within 20 days after giving notice, the decision of the board shall be final. Where the board has made an award against an insurance company requiring weekly payments to an injured employee, and the insurer either fails or refuses without justifiable cause to make such payments as they mature, the injured employee shall have the right to mature the entire claim and institute suit to collect the whole amount, together with 12 per cent. penalties and reasonable attorney's fees.
Latham gave notice within the 20 days allowed, and promptly filed suit within the additional period fixed by the statute in the district court of Harris county, to set aside the award of the board. The Maryland Casualty Company, made party to the suit, removed it to the federal District Court. Thereafter, on October 27, before judgment determining any rights of either party had been entered, Latham dismissed the suit. On November 6, 1928, Latham and Nichols filed the present suit in the above-mentioned state court to enforce the award, asking for a lump sum judgment with 12 per cent. penalties and a reasonable attorney's fee. This suit was also removed by the Maryland Casualty Company.
In the meantime, on November 2, 1928, the Maryland Casualty Company had applied to the board for a rehearing of the claim. The board decided on November 15, 1928, that it had no further jurisdiction over the case, and declined to entertain the petition. The Maryland Casualty Company then gave notice of appeal, on December 6, 1928, and on December 15, 1928, filed suit in the federal District Court to set aside the award. Apparently that suit is still pending and undecided.
By plea in abatement, which was overruled, and later in its answer, the Maryland Casualty Company, appellant herein, contended that, as the statute provides for a trial de novo, the filing of the suit by Latham to set aside the award had the effect of nullifying it. The...
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