Ocean Accident & Guaranty Corporation v. May

• Citation: 15 S.W.2d 594
• Decision Date: 03 April 1929
• Docket Number: (No. 1223-5242.)
• Parties: OCEAN ACCIDENT & GUARANTY CORPORATION, Limited, v. MAY et al.
• Court: Supreme Court of Texas

15 S.W.2d 594

OCEAN ACCIDENT & GUARANTY CORPORATION, Limited, v. MAY et al.

(No. 1223-5242.)

Commission of Appeals of Texas, Section A.

April 3, 1929.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by H. R. May and another against the Ocean Accident & Guaranty Corporation, Limited. Judgment sustaining defendants' plea of abatement was reversed and rendered as to plea in abatement, and case reversed and remanded for new trial on merits by the Court of Civil Appeals , and defendants bring error. Reversed, and judgment of district court affirmed.

Foster & Fullingim, of Amarillo, for plaintiff in error.

F. H. McGregor, of Amarillo, for defendants in error.

CRITZ, J.

This suit was originally filed in the district court of Potter county, Tex., by H. R. May and F. H. McGregor against the Ocean Accident Guaranty Corporation, Limited, a foreign corporation doing business in this state, hereinafter called Guaranty Corporation, to mature an award theretofore made by the Industrial Accident Board of this state in favor of said May and McGregor, and against said Guaranty Corporation. As a defense to this suit, the Guaranty Corporation interposed a plea in abatement, which, in substance, alleged that May filed claim for compensation with the Industrial Accident Board of Texas against said Guaranty Corporation, and that on December 20, 1926, said board made and entered its final award on said claim awarding said May compensation to be paid by said Guaranty Corporation at the rate of $20 per week for 401 weeks, and further awarded certain attorney's fees to be paid by said Guaranty Corporation to said McGregor; that said Guaranty Corporation had duly appealed from said award of said Industrial Accident Board to the district court of Potter county, Tex., the court having jurisdiction under the laws of this state; that said appeal was then pending and undecided in said court, being cause No. 5253 of the docket of said court, styled Ocean Accident & Guarantee Corporation, Limited, v. H. R. May and F. H. McGregor; that all the matters and things complained of in this suit are involved in cause No. 5253, and that said May and McGregor had no right to prosecute this suit until said cause No. 5253 is finally disposed of by said district court.

Trial was had on the above plea in abatement in the district court of Potter county before a jury, and, after hearing evidence on said plea, the trial court peremptorily instructed the jury to return a verdict in favor of the Guaranty Corporation, said charge being as follows: "It appearing that cause No. 5253 pending on the docket of this court and now entitled Ocean Accident and Guarantee Corporation, Limited, v. H. R. May et al. has not been disposed of and is now pending on the docket of this court and that the right of plaintiff to recover in this cause No. 5324 is dependent upon the final disposition of said cause No. 5253, you will return your verdict in favor of the defendant on the plea in abatement in this cause."

In response to said charge the jury returned the following verdict: "We, the jury, find in favor of the defendant in the above entitled and numbered cause on its plea in abatement."

In accordance with said verdict the trial court entered in this suit the following judgment: "It is therefore considered by the court that the plaintiff's suit is prematurely brought, and it is further considered, ordered and adjudged by the court that plaintiff's said suit be and is hereby abated and dismissed without prejudice to the plaintiffs to refile the same at any time in the future that the right to bring the same may accrue to them, and that defendant do have and recover of and from said plaintiff H. R. May all costs in this behalf incurred, to which action, judgment, and decree of the court plaintiffs in open court duly excepted and gave notice of appeal to the Court of Civil Appeals of the Seventh judicial district of Texas."

May and McGregor duly perfected appeal from the above judgment in this suit to the Court of Civil Appeals for the Seventh District at Amarillo, which court reversed the judgment of the district court and rendered judgment in favor of May and McGregor, overruling said plea in abatement, and remanded the case to the district court for trial on the merits (Tex. Civ. App.) 6 S.W.(2d) 803. The case is now before the Supreme Court on writ of error granted on application of the Guaranty Corporation.

The other salient facts of this case are fully stated in the opinion of the Court of Civil Appeals, and, as they are very extended, for brevity we here refer to the opinion of that court for further statement of the case.

As shown by the above statement, and the statement of the Court of Civil Appeals, the decision as to whether this suit should abate depends on the question as to whether the proceedings had in the first suit No. 5253, in the same court, are sufficient to constitute an appeal from the award of the Accident Board by the Guaranty Corporation against May and McGregor.

It is our opinion that under the facts of this case, as set out above and as set out in the opinion of the Court of Civil Appeals, if the petition contained in the wrapper indorsed No. 5253, H. W. Underhill Construction Co. v. H. R. May et al., and, as shown by the indorsement on the wrapper, was filed January 6, 1927, was contained in said wrapper at the time it was delivered to the clerk of the district court, it was sufficient to constitute the filing of an appeal from the award of the Industrial Accident Board with reference to the matters therein set forth and contained, and the mere fact that said petition was erroneously indorsed, W. H. Underhill Construction Company v. H. R. May et al. would not render such filing a nullity, but, on the other hand, such erroneous indorsement would be a mere irregularity. We are further of the opinion that on a proper showing in said first cause No. 5253, the trial court had the right and it was his duty to enter such orders and decrees as were proper and necessary to correct the indorsements on the papers and records of said court involved so as to make them speak the truth. We are further of the opinion that...