Perkins v. United States Fidelity & Guaranty Co.

• Citation: 299 S.W. 213
• Decision Date: 26 October 1927
• Docket Number: (No. 820-4857.)
• Parties: PERKINS v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Supreme Court of Texas

299 S.W. 213

PERKINS v. UNITED STATES FIDELITY & GUARANTY CO.

(No. 820-4857.)

Commission of Appeals of Texas, Section B.

October 26, 1927.

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

Suit by the United States Fidelity & Guaranty Company against E. D. Perkins to set aside an award of the Industrial Accident Board, in which defendant filed a cross-bill. Judgment for defendant was reversed and rendered by the Court of Civil Appeals (293 S. W. 675), and defendant brings error. Judgments of district court and Court of Civil Appeals both reversed and rendered.

Dies, Stephenson & Dies, of Orange, for plaintiff in error.

Hunt & Teagle, of Houston, for defendant in error.

POWELL, P. J.

The Court of Civil Appeals makes the following statement of the case:

"Appellant brought this suit in the district court of Orange county, Tex., to set aside an award made by the Industrial Accident Board of this state in favor of appellee, upon a claim filed before said board by appellee for compensation under the Employer's Liability Act of this state. * * *

"Appellee answered and filed his cross-bill, setting up the usual allegations necessary to recover under the Workmen's Compensation Act.

"Appellant replied by supplemental petition, excepting to the jurisdiction of the court on the ground that the injuries were maritime in their nature and cognizable only by the United States courts, that the Texas Workmen's Compensation statutes had no application, and therefore the court was without jurisdiction of the subject-matter.

"To this plea appellee replied that appellant was estopped to challenge the court's jurisdiction, because it had invoked the jurisdiction of the court to set aside a final award of the Industrial Accident Board of the state of Texas, and that, after filing the suit in the district court, it had appeared from time to time and filed additional pleadings, had agreed to a setting of the case for trial, and had entered into an agreement with appellee `that the amount involved in said award is sufficient to give the district court of Orange county, Tex., jurisdiction of this action, and both parties are now properly before this court for adjudication of all matters and things involved herein,' which agreement was filed in court, and further because, after appellee had received his injuries, appellant had acknowledged its liability and paid compensation, and had never asserted that the Industrial Accident Board did not have jurisdiction to determine the rights of the parties, in no wise excepting to said board's jurisdiction when the matter was pending before said board, although appellant was at all times in possession of all the facts relating to the injuries and the nature of the work engaged in by appellee at the time of the injury, and denied that the action was one exclusively within the jurisdiction of the admiralty courts.

"The case was tried to a jury upon special issues, which they answered in favor of appellee, and judgment was rendered in his favor for $1,886.66, less the sum of $760, which had theretofore been paid him by appellant, and further judgment for the sum of $20 per week for the remainder of the term of 401 weeks, from which judgment this appeal is taken."

That court reversed the judgment of the trial court and rendered judgment for the appellant. 293 S. W. 675. It sustained assignments of error complaining of the refusal of the trial court to instruct a verdict for the insurance company, saying:

"The refusal of the instruction was error. The undisputed facts showed that appellee, at the time he received his injuries, was engaged in the performance of a contract which was maritime in its nature, and hence the rights and liabilities of the parties were clearly matters within the admiralty jurisdiction; wherefore the Employers' Liability Act of this state has no application to the claim asserted by appellee here. South Pac. Co. v. Jenson, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; State v. Dawson, 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646; Bell v. Southern Casualty Co. (Tex. Civ. App.) 267 S. W. 531; Southern Casualty Co. v. Henry (Tex. Civ. App.) 276 S. W. 336."

The plaintiff in error, in his application for the writ, complains of the last-quoted holding of the Court of Civil Appeals in his first assignment of error, as follows:

"First: The honorable Court of Civil Appeals erred in holding that the appellant did not, by its acts and conduct, adopt the Workmen's Compensation Law of Texas as its measure of rights and liabilities and thereby estop itself from asserting lack of jurisdiction of the district court of Orange county on account of the injuries complained of by appellee, which were received by him while engaged in work in the hold of a ship engaged in maritime commerce."

The controlling question in this case is whether the Court of Civil Appeals correctly held, under the facts in this record, that this injury was not within the jurisdiction of the state courts. In discussing this question, we think it helpful to determine whether or not, ordinarily speaking, one injured under circumstances which surrounded Perkins could recover under a state Compensation Act. If we shall show that one injured as Perkins was would be relegated to the admiralty courts, then it becomes important to determine whether or not defendant in error has waived its right to plead lack of jurisdiction in the state courts. Let us first consider the first question just mentioned.

We have already quoted the holding of the Court of Civil Appeals upon this point. That court sets out the relevant facts, as follows:

"The facts are: Perkins was employed by Pickett Jones in the loading of a vessel in the Sabine river, at Orange, Tex. While engaged in such work in the hold of the vessel, he was struck by a timber that was being lowered into the hold of the vessel, and sustained the injuries complained of. The vessel was what is known as a British tramp steamer, and was being loaded with lumber for exportation. The Sabine river is a navigable stream, connecting with the Gulf of Mexico, through Sabine Pass."

Reading the application, it would seem to be conceded that, unless the defendant in error herein waived its right to attack the jurisdiction of the state court, such plea would be good. But, as we read the application more in detail, and especially the argument therein and the cases cited, it is clear that counsel for Perkins entertained some doubt that the admiralty courts have exclusive jurisdiction of a case of this kind. In this contention, we think they are in error. The cases cited by the Court of Civil Appeals are exactly in point on the facts. The holdings therein are clear. The authorities cited include not only the decisions of the United States Supreme Court, but two recent Texas cases. In one of the latter a writ of error was refused by the Supreme Court. It seems that there was no application in the second case. In these two Texas cases, the injured party was engaged in the same kind of work as was Perkins, and it was held that there could be no recovery in those two cases under our Compensation Act (Rev. St. 1925, arts. 8306-8309).

Counsel for Perkins allude to the case of Lindberg v. Southern Casualty Company (D. C.) 15 F. (2d) 54. In that case, Judge Hutcheson of Houston held that the claimant was entitled to recover under the Louisiana Compensation Act (Act No. 20 of 1914, as amended). In discussing the facts surrounding the injured party in that case, the court said:

"The facts here make the case even more clearly one of local law. While there was deep water around the dredge and the channel she was digging was intended to be navigated when finished, she was in fact merely eating her way over land from the Sabine river to Lake Charles, La., to create a navigable channel."

The court, in the Lindberg Case, supra, expresses a lack of sympathy with the opinion of the United States Supreme Court in the Dawson Case. We quote from his opinion as follows:

"While on the general proposition my view of the matter is that expressed by Mr. Justice Brandeis in his dissenting opinion in Washington v. Dawson, 264 U. S. 219, 44 S. Ct. 302, 68 L. Ed. 646, especially in that part of it which constitutes a most admirable contribution to the science of the law, beginning at page 235 of 264 U. S. (44 S. Ct. 302) to the end, and so feeling I would let my mind be bold to find an exception here, it is not necessary for me to do so, for the Supreme Court of the United States, in its slow but inevitable back trek has already made the exception in refusing writ of certiorari ( 46 S. Ct. 353 ) in Southern Surety Co. v. Crawford (Tex. Civ. App.) 274 S. W. 280, and in affirming the Supreme Court of Texas in Miller's Indemnity Underwriters v. Braud, 270 U. S. 59, 46 S. Ct. 194, 70 L. Ed. 470, 1926 A. M. C. 310, in the one case holding that a dredgeman on a dredge in an inland harbor channel, while subject to admiralty jurisdiction, could contract with his employer and obtain the benefit of the Workmen's Compensation Act, and in the other that a driver on a floating barge, on the navigable Sabine river, while subject to admiralty jurisdiction, yet might obtain the benefit of the Workmen's Compensation Act of the state of Texas (Vernon's Ann. Civ. St. 1925, arts. 8306-8309), because the matter was local, and its control by the statutes of the state as to compensation would work no material prejudice to the general maritime law."

In the Dawson Case, Judge Brandeis dissenting, the federal Supreme Court held unconstitutional an act of Congress which was intended to permit men, situated as Perkins in the case at bar, to recover under the Compensation Acts of the various states. The court said that Congress, alone, could pass a uniform Employers'...