Morgan v. Woodruff

• Decision Date: 12 February 1948
• Docket Number: No. 11986.,11986.
• Citation: 208 S.W.2d 628
• Parties: MORGAN et al. v. WOODRUFF et al.
• Court: Texas Court of Appeals

Page 628

208 S.W.2d 628

MORGAN et al. v. WOODRUFF et al.

No. 11986.

Court of Civil Appeals of Texas. Galveston.

February 12, 1948.

Original proceeding by William L. Morgan and others against Honorable Phil D. Woodruff, District Judge, and others, for a writ of mandamus to compel trial of personal injury actions.

Application granted.

Irving G. Mulitz and Frank F. Spata, both of Houston, for relators.

Vinson, Elkins, Weems & Francis, C. M. Hightower and W. B. Browder, Jr., all of Houston, for respondent Brown & Root, Inc.

MONTEITH, Chief Justice.

This action was brought by relators, Wm. L. Morgan and Thomas J. Rogers, as an original proceeding to require respondent, Honorable Phil D. Woodruff, Judge of the 113th District Court of Harris County, by writ of mandamus to proceed to trial and final judgment in Causes Nos. H-346,143 styled Wm. L. Morgan v. Brown & Root, Inc., and A-346,144, styled Thomas J. Rogers v. Brown & Root, Inc., in the District Court of Harris County, Texas, and to enter an order directing that each of said causes be consolidated for trial with a cause entitled Mrs. Robert E. Quinn et al. v. Brown & Root, Inc., No. B-346,145 on the docket of the 55th District Court of Harris County, in accordance with an order of the Honorable Ewing Boyd, Judge of the 55th Judicial District Court of Texas, and that this Court issue a writ of prohibition commanding Judge Woodruff to refrain from taking any further action on the order entered by Judge Boyd consolidating said causes of action. Respondents, Brown & Root, Inc., the defendant in said suits, and Jesse E. Robinson, the driver of the automobile in which relators were injured, were also made parties to this action.

Relators represented that they had instituted suits above referred to in the District Court of Harris County against the respondent Brown & Root, Inc., for the recovery of damages for injuries alleged to have been received by them while they were employees of the United States Government on a military reservation known as Camp Hood, in Bell County, Texas, while occupants of a truck being operated by respondent, Jesse E. Robinson, which injuries were alleged to have been the result of the negligence of respondent Brown & Root, Inc. They alleged that Mrs. Robert E. Quinn, Jr., and others, had also instituted suit against the respondent, Brown & Root, Inc., for the recovery of damages by reason of the death of Robert E. Quinn, Jr., in the accident in which relators were injured. Respondent Brown & Root, Inc., filed its answers in the suits filed by relators, including a plea in bar to each of the relators' petitions, and a cross-action against Jesse E. Robinson, driver of the truck in which relators were passengers at the time and place of said accident. On January 12, 1948, the Honorable Ewing Boyd, Judge of the 55th Judicial District Court of Harris County, Texas, on request for preferential setting, entered an order consolidating said causes, so that they might be set down for trial on February 16, 1948.

Thereafter respondent, Honorable Phil D. Woodruff, on January 23, 1948, entered an order abating relators' right to proceed in the above numbered and entitled causes until the United States of America became a party to these suits. He ordered a severance of said causes of action.

Relators alleged that the action of respondent, Judge Woodruff in sustaining respondents' plea in abatement until the United States became a party to their suits, deprived them of their right to proceed to trial and final judgment, in that there is no manner or remedy by which they can bring the United States of America into a State court, and that they have no complete and adequate remedy at law by which to review the action of respondent Judge Woodruff except by writ of mandamus.

It is admitted by the parties that relators' suits were filed as alleged. The respondent Brown & Root, Inc., however, alleged that relators had previously filed claims for and received government compensation and medical and hospital benefits under the United States Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., and that the United States Government had caused said suits to be filed and prosecuted. They further alleged that, in the absence of the United States of America as an actual and named party in said suits, they would be deprived of proper legal defenses; that relators Morgan and Rogers executed enforceable written contracts in which they had assigned their claims against said respondent Brown & Root, Inc., to the United States, and that the United States was a real party in interest in said causes of action.

After a hearing, respondent Judge Woodruff entered an order abating each of said suits until the United States of America became a named party therein, or until such time after such motion and notice as the court should consider proper, to dismiss such suits by reason of the fact that the United States of America had not become a named party therein.

The material facts are undisputed. They are substantially as plead.

On the trial evidence was introduced supporting respondents' allegations that said suits were being prosecuted by the Regional Attorney of the United States, Mr. Irving Mulitz, and that the respondent Jesse E. Robinson, the driver of the truck at the time relators were injured, was the agent of the United States, and was acting within the scope of his employment.

The contract of employment by the relators and their attorney, Mr. Irving Mulitz, expressly recites that:

"This agreement is not an assignment, but in consideration of the payment of compensation to me I agree to execute an assignment to the United States of any right of action I may have arising out of the aforesaid injury, or any right I may have to share in any money paid in satisfaction of the liability of the party responsible for such injury, at any time such assignment is requested by the United States Employees' Compensation Commission.

"I further agree that in the event of recovery of damages, the proceeds shall be distributed in accordance with the provisions of Sections 26 and 27 of the Compensation Act; and it is further understood that there may be deducted from the gross amount of the settlement the expenses of prosecution, including the attorney's fee approved by the United States Employees' Compensation Commission. * * *". The contract is, in effect, an agreement that, in consideration of the compensation paid relators by the government, they agreed to execute an assignment to the United States Government of any right of action they might have growing out of said injuries at such time as an assignment is requested by the United States Employees' Compensation Commission.

Rule 39, Texas Rules of Civil Procedure, reads:

"(a) Necessary joinder. Except as otherwise provided in these rules, persons having a joint interest shall be made parties and be joined as plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, he may be made a defendant or, in proper cases, an involuntary plaintiff.

"(b) Effect of failure to join. When persons who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them made parties. The court in its discretion may proceed in the action without making such persons parties, if its...