Mingus v. Wadley

• Decision Date: 16 June 1926
• Docket Number: (No. 4377.)
• Citation: 285 S.W. 1084
• Parties: MINGUS v. WADLEY et al.
• Court: Texas Supreme Court

285 S.W. 1084

MINGUS v. WADLEY et al.

(No. 4377.)

Supreme Court of Texas.

June 16, 1926.

Appeal from Court of Civil Appeals of Second Supreme Judicial District.

Action by Helen Florence Wadley against the Associated Employers' Reciprocal and another, in which J. W. Mingus, as receiver of the Reciprocal, intervened and moved to vacate the appointment of George B. Gay, as receiver. From a judgment overruling the motion and refusing the relief sought, intervener appealed to the Court of Civil Appeals, which certified two questions to the Supreme Court. First question answered in the negative.

Saunders & Evans, of Breckenridge, and Levy & Evans, of Fort Worth, for appellant.

Small & McGee, of Fort Worth, and Ocie Speer, of Austin, for appellees.

Bonner, Bonner & Fryer, of Wichita Falls, amicus curiæ.

CURETON, C. J.

This case is before us on certified question from the Court of Civil Appeals for the Second District.

On April 2, 1924, the Industrial Accident Board entered an award against the Associated Employers' Reciprocal, allowing Helen Florence Wadley, the surviving widow of Moses Franklin Wadley, deceased, and Moses Franklin Wadley, a minor, compensation at the rate of $20 per week for a period of 360 weeks, beginning November 21, 1923, less a certain percentage of the award allowed Hugh L. Small and George I. McGee, attorneys for the widow and child of the deceased. On May 5, 1924, the Reciprocal instituted suit to set aside this award in the district court of Wichita county, where the injury to the deceased occurred, within the time and in a manner sufficient to invoke the jurisdiction of that court, making all the beneficiaries of the award parties. Citation was served upon the defendants, the Wadleys and Small & McGee, all of whom filed answer and cross-action in the Wichita suit on June 28, 1924, the answer and cross-action containing allegations of fact setting forth their claim for compensation under the provisions of the Workmen's Compensation Act. The Wichita county case was not tried, or any further orders entered therein except those which will be hereafter mentioned.

On October 2, 1924, long after the institution of the suit in Wichita county by the Associated Employers' Reciprocal, and long after June 28th, the date that the Wadleys and Small & McGee filed answer in the Wichita county case, Helen Florence Wadley, being the same person who was a defendant of that name in the Wichita county suit, filed suit in the Sixty-Seventh district court in Tarrant county against the Associated Employers' Reciprocal and John M. Scott, commissioner of insurance for the state of Texas, on the award heretofore previously described as having been made to her and her minor son by the Industrial Accident Board, and, ancillary to the suit, prayed for the appointment of a receiver. The purpose of making Scott, the commissioner of insurance, a party was stated to be that as such officer he constituted the attorney in fact and nominal official of the Associated Employers' Reciprocal, and was the legal and actual custodian of certain guaranty funds and other securities deposited with and held by the commissioner for the security and protection of claimants, provided for under the statute. Mrs. Wadley alleged in her petition in the Tarrant county case that her husband had died on the 21st day of November, 1923, while employed by the Tidal Western Oil Corporation, and as such employee was covered by a policy of insurance carried by the Oil Corporation with the defendant the Associated Employers' Reciprocal. She then alleged:

"That the plaintiff, in her individual capacity and as next friend of Moses Franklin Wadley, a minor son of plaintiff and deceased, presented her claim in the amount of $7,200 in accordance with the provisions of said Employers' Liability Act, which claim was, on April 2, 1924, duly heard before the Industrial Accident Board of the state of Texas, at Austin, Tex., constituted and empowered to act under said statutes, and said claim of plaintiff was on that date approved and allowed by said board as shown by their award, a copy of which is hereto attached and made a part of this petition. That the defendant has wholly failed and refused to pay said award or any part thereof, although the same is in a just amount, duly approved before said board, and not subject to any valid or consistent defense."

In addition to this she made certain allegations showing the necessity for a receivership, but no allegation to the effect that notice had not been given of refusal to abide by the award, and none to the effect that suit had not been filed to set the award aside.

On the day the petition was filed, the Sixty-Seventh district court in Tarrant county, apparently without notice, appointed George B. Gay receiver of the Associated Employers' Reciprocal. After his appointment as receiver, Mr. Gay moved and obtained the dismissal of the Wichita county case on or about December 1, 1924. There is no contention that the Wichita county district court had lost jurisdiction up to this time.

On the 26th of January, 1925, in a suit pending in the Ninety-Sixth judicial district in Stephens county, between one G. Graham and the Associated Employers' Reciprocal, J. W. Mingus was by that court appointed receiver of the Reciprocal, gave bond, and qualified as such. On February 9th he was given authority to and was directed by that court to intervene in the Tarrant county case between Mrs. Wadley and the Reciprocal, for the purpose of showing the invalidity of the receivership pending in the last named case. He filed a motion for leave to intervene in the Tarrant county case, which was granted, and then filed his motion therein to vacate the receivership on the ground that the appointment was illegal and void for various reasons. The motion sets forth the facts heretofore detailed as to the award in favor of Mrs. Wadley and the filing of the suit in Wichita county, and pleads the consequent abatement of the Tarrant county case by the Wichita county suit. The motion also alleged that the filing of this suit in Wichita county had the effect to set aside and nullify in all respects the award of the Industrial Accident Board, and that this award thereafter was without force and effect as establishing in favor of Mrs. Wadley any right or claim over which any court could take cognizance against the Associated Employers' Reciprocal. The motion declared that the petition of Mrs. Wadley in the Tarrant county case asserted no facts showing jurisdiction of the Tarrant county court over any cause of action, and that as a matter of truth and fact the Tarrant county court had no jurisdiction over any cause of action set forth, or attempted to be set forth, in Mrs. Wadley's petition, and no jurisdiction over the parties to the cause of action with respect to any matter alleged in the petition filed by Mrs. Wadley in the Tarrant county district court, and did not have at the time of the institution of the suit and the appointment of the receiver. The motion specifically stated:

"Plaintiff's petition contains no allegations to the effect that the Associated Employers' Reciprocal failed or refused to bring suit to set aside the said award so made by the Industrial Accident Board of the state of Texas, in favor of plaintiff, as is provided may be done in section 5 of part 2 of the Employers' Liability Act of the state of Texas. * * *

"It does not appear from the allegations of plaintiff's petition that this suit has been instituted in a court of competent jurisdiction where the injury occurred or where plaintiff or a claimant seeking relief resides."

The motion pleads fully the history of all proceedings in all three of the courts concerned, but the foregoing is sufficient for the purposes of this opinion.

This motion was, upon notice to all parties and hearing, overruled, and the relief sought refused. Mingus then appealed to the Court of Civil Appeals for the Second District, where the case is now pending. That court has certified to us two questions, as follows:

"1. Does the original petition filed by plaintiff in cause No. 6820, Helen Florence Wadley v Associated Employers' Reciprocal et al., contain allegations of fact which set forth a cause of action of which the honorable Sixty-Seventh district court of Tarrant county, Tex., acquired jurisdiction?

"2. Even though such petition be held to contain allegations of fact sufficient to invoke the jurisdiction of the honorable district court of Tarrant county, Tex., should said court have retained jurisdiction of the suit instituted by plaintiff Helen Florence Wadley after the facts hereinafter set forth were established by undisputed evidence introduced upon the hearing of the motion to vacate the order appointing the receiver?"

Opinion.

We assume from the wording of the second question certified that in the event the first is answered in the negative an answer to the second one is not requested. Since we have concluded that the first question must be answered in the negative, we will confine our discussion to that inquiry.

This suit arises out of a workman's compensation proceeding, and it is therefore in derogation of the common law. The rights to be enforced, and all the remedies provided therefor, are purely statutory, as distinguished from the common-law rights and remedies. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 556; 28 Ruling Case Law, p. 714, section 3, and page 750, §§ 45, 46, 47, 51, 79.

The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable. 1 Ruling Case Law, p. 322, § 9; 17 Corpus Juris, p. 1195, § 44, B; 1 Corpus Juris, p. 951, § 47, page 976, § 72, page 988, §§ 100D, 102B; Keller v. Corpus Christi, 50 Tex. 614, 32 Am....