Postal Mut. Indemnity Co. v. Ellis

• Decision Date: 24 March 1943
• Docket Number: No. 8009.,8009.
• Parties: POSTAL MUT. INDEMNITY CO. v. ELLIS.
• Court: Texas Supreme Court

169 S.W.2d 482

POSTAL MUT. INDEMNITY CO. v. ELLIS.

No. 8009.

Supreme Court of Texas.

March 24, 1943.

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

Suit under the Workmen's Compensation Act by K. E. Ellis, employee of Bellar-Smalley, Inc., to set aside an award of the Industrial Accident Board in favor of Postal Mutual Indemnity Company, insurance carrier. To review a judgment of the Court of Civil Appeals, 161 S.W.2d 1114, affirming a judgment for employee, insurance carrier appeals.

Judgments of trial court and Court of Civil Appeals reversed and cause remanded for new trial.

William C. Ross, Jr., of Beaumont, for plaintiff in error.

Adams & Hillin, of Jasper, for defendant in error.

ALEXANDER, Chief Justice.

This is a workman's compensation case. The Court of Civil Appeals affirmed a judgment in favor of the employee. 161 S.W.2d 1114.

The judge who tried the case was the father of one of the attorneys for the injured employee, and it is here contended by the insurance company that he was disqualified to sit as a judge in the case.

Our Workmen's Compensation Act, Article 8306, Section 7c, Vernon's Ann.Civ. St., provides that the Industrial Accident Board shall fix the fees of the attorney representing the employee before the Board. It further provides: "Sec. 7c. * * * After the approval, as first above provided for, if the association be notified in writing of such claim or agreement for legal services, the same shall be a lien against any amount thereafter to be paid as compensation; * * *."

Section 7d of Article 8306 provides:

"For representing the interest of any claimant in any manner carried from the board into the courts, it shall be lawful for the attorney representing such interest to contract with any beneficiary under this law for an attorney's fee for such representation, not to exceed one-third (1/3) of the amount recovered, such fee for services so rendered to be fixed and allowed by the trial court in which such matter may be heard and determined.

"In fixing and allowing such attorney's fees the court must take into consideration the benefit accruing to the beneficiary as a result of such services. No attorney's fees (other than the amount which the board may have approved) shall be allowed for representing a claimant in the trial court unless the court finds that benefits have accrued to the claimant by virtue of such representation, and then such attorney's fees may be allowed only on a basis of services performed and benefits accruing to the beneficiary."

In this case the injured employee brought suit to set aside the award of the Board. He set out in his petition that he had employed Adams & Hillin, attorneys, to present his claim before the Industrial Accident Board and to prosecute this suit, and that he had contracted to pay said attorneys such attorneys' fees as the court might allow, not to exceed one-third of the recovery. He prayed "That one-third of any recovery be apportioned to said attorneys." The part of the judgment essential to the question here under discussion reads as follows:

"And it further appearing unto the Court that K. E. Ellis has been represented in the trial of this case and before the Industrial Accident Board by Attorneys Adams & Hillin, and has agreed with said attorneys to pay them a sum equal to one-third of any recovery effected in this case; and it appearing to the Court that said sum of one-third is fair and just and has been earned by said attorneys.

"It is therefore ordered, adjudged and decreed by the Court that out of said sum of $57.81 and $2,962.82, one-third be apportioned to said attorneys, Adams & Hillin.

"It is further ordered by the Court that the Clerk issue a Writ of Execution on the request of plaintiff and his attorneys for the collection of said judgment and costs, and the officer so executing said writ is hereby directed on the collection of said judgment, or any part thereof, under said writ, to pay the sum so realized thereon to plaintiff and his attorneys in the proportions herein specified.

"It is further ordered, adjudged and decreed by the Court that upon payment by defendant to the said plaintiff and to his attorneys herein named of said judgment in the proportion hereinabove specified, and upon its paying to the officer of the Court the costs herein incurred, this judgment shall stand satisfied in full."

Article 15, Vernon's Annotated Civil Statutes, reads as follows: "Art. 15. No judge or justice of the peace shall sit in any case wherein he may be interested or where either of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been counsel in the case." See also Article V, Section 11, Texas Constitution, Vernons Ann.St.Const.

It is settled that the disqualification of a judge, as above provided for, affects his very jurisdiction and power to act, and cannot be waived. Chambers v. Hodges, 23 Tex. 104, 105; City of Dallas v. Peacock, 89 Tex. 58, 33 S.W. 220; Lee v. British-American Mortgage Co., 51 Tex. Civ.App. 272, 115 S.W. 320. Any judicial act of discretion exercised by a judge subject to the disqualifications defined by the above constitutional and statutory provisions is absolutely void. Chambers v. Hodges, supra; Newcome v. Light, 58 Tex. 141, 44 Am.Rep. 604.

It appears to be settled that the word "party," as used in the above statute, is not restricted to those who are named as parties in the pleadings, but that it includes all persons directly interested in the subject matter and result of the suit, regardless of any appearance of their names in the record. 25 T.J. 284; Schultze v. McLeary, 73 Tex. 92, 11 S.W. 924; Hodde v. Susan, 58 Tex. 389; Grubstake Inv. Ass'n v. Kirkham, Tex.Civ.App., 10 S.W.2d 184, writ refused.

But it is well settled also that an attorney is not so directly interested in the subject matter...