Republic Underwriters v. Howard, 1203.

• Decision Date: 16 February 1934
• Docket Number: No. 1203.,1203.
• Citation: Republic Underwriters v. Howard, 69 S.W.2d 584 (Tex. App. 1934)
• Parties: REPUBLIC UNDERWRITERS v. HOWARD.
• Court: Texas Court of Appeals

Page 584

69 S.W.2d 584

REPUBLIC UNDERWRITERS v.HOWARD.

No. 1203.

Court of Civil Appeals of Texas. Eastland

February 16, 1934.

Rehearing Denied March 23, 1934.

Appeal from District Court, Nolan County; A. S. Mauzey, Judge.

Proceedings under the Workmen's Compensation Act by Cecil C. Howard, as employee of the L. S. Howard Gin, opposed by the Republic Underwriters.The Industrial Accident Board awarded damages and the insurance carrier appealed by notice and filing of suit in the district court.From a judgment for claimant in the district court, insurance carrier appeals.

Affirmed.

Mays & Perkins, of Sweetwater, and Ellis K. Douthit, of Abilene, for appellant.

Beall, Beall & Beall, of Sweetwater, for appellee.

LESLIE, Justice.

This was a suit by Cecil C. Howard for compensation for damages by reason of an industrial accident sustained while employed by the L. S. Howard Gin, which carried compensation insurance with the Republic Underwriters, the appellant herein.The Industrial Accident Board awarded damages, and the Underwriters appealed therefrom by timely notice and filing of suit in the district court.Trial in court resulted in judgment for claimant, and the carrier prosecutes this appeal.Facts material to the points presented will be stated in the body of the opinion.

The board's award was made June 28, 1932.The claimant's notice of appeal was given the board and carrier July 11, 1932.His time for filing independent suit based on his notice expired July 31, 1932.The Underwriters' notice, etc., of appeal was given July 15, 1932, and seventeen days thereafter (August 1st) it filed its suit in the district court of Nolan county to set aside the award.The next day, August 2d, the claimant filed what is designated as his answer and cross-action to the Underwriters' suit.Citation issued on it August 9, 1932.September 30, 1932, the employee filed his first amended original answer and cross-action.Following this, the Underwriters filed, on February 9, 1933, a motion to discontinue or dismiss its original suit filed August 1, 1932.The court overruled this motion the same day and exception was taken thereto.On that day, February 9, 1933, the Underwriters had filed what is designated "Plaintiff's First Amended Original Petition," containing a general demurrer to the claimant's cross-action, and also a general denial of the same.This general demurrer, though present in the pleading, was never urged before the trial court until after he acted upon the motion to dismiss.General and special exceptions, however, were urged after the claimant filed his "Second Amended Original Answer and Cross-action," upon which the trial was in fact had.Said demurrer, as it related to the original or first amended answer and cross-action, was specifically called to the court's attention first in the motion for a new trial.

To the action of the trial court in overruling the motion to dismiss or nonsuit, the appellant contends that "the court in failing and refusing to sustain its motion to dismiss or discontinue its appeal from the award of the Industrial Accident Board was in error."

Obviously, this assignment is predicated upon the ground that the appellee's cross-action was subject to a general demurrer in that it did not allege the jurisdictional facts prerequisite to a valid appeal, or, in other words, that no valid cross-action or plea for affirmative relief had been filed by claimant at the time the motion for nonsuit or discontinuance was interposed.This proposition rests upon the further contention that the claimant's first amended answer and cross-action omitted any allegation (1) that within thirty days after the receipt of the injury he notified either his employer, or the association of the same; or (2) that he properly filed within six months after injury any claim with the Industrial Accident Board.

An examination of the record discloses that at the time the appellant was seeking to nonsuit or discontinue its suit, the only pleading then on file by the claimant—the first amended answer and cross-action—in fact did not contain any allegation as to said notice and claim before the board.In this situation the appellant invokes article 2182, R. S. 1925, and authorities thereunder.Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427;Frois v. Mayfield, 31 Tex. 366;Egery v. Power, 5 Tex. 501;Apache Cotton Oil Co. v. Watkins(Tex. Civ. App.)189 S. W. 1083;Peters v. Chandler(Tex. Civ. App.)51 S. W. 281;White v. Williams, 13 Tex. 258;Ramsey v. District Court, 33 Idaho, 296, 193 P. 733;Odum v. Peeler(Tex. Civ. App.)278 S. W. 884;Dannelly v. Jeffrey(Tex. Civ. App.)283 S. W. 351;W. B. Walker & Sons v. Hernandez, 42 Tex. Civ. App. 543, 92 S. W. 1067.

Based upon this statute and such authorities, the appellant concludes as follows:

"In our opinion the above authorities are conclusive of this appellant's right to take a non-suit, if, at the time of filing of its motion, there was no cross-action for affirmative relief or for that matter, even if there was a purported one but such being subject to a general demurrer, then nevertheless such motion for discontinuance should prevail."

The appellant then proceeds upon the authority of Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, Globe Indemnity Co. v. McClurg(Tex. Civ. App.)38 S.W.(2d) 125, Texas Employers' Ins. Ass'n v. Wright(Tex. Com. App.)4 S.W.(2d) 31, and other authorities of like import discussing jurisdictional questions under the Workmen's Compensation Law to demonstrate that the claimant's answer and cross-action was subject to a general demurrer, and that its nonsuit should have been granted, carrying with it claimant's interest, if any, in the litigation.

It will be remembered that the claimant's notice of dissatisfaction, etc., of the award and intention to appeal was mailed to the board July 8, 1932, and received by it July 11, 1932.From this it is seen that August 1st, the day suit was filed by the Underwriters, the claimant's twenty days for independent suit had expired.His cross-action was filed, however, August 2, 1932, twenty-one days after his notice, etc.If the claimant had given no notice of dissatisfaction and intention to appeal from the award at all, he certainly had the right under the statute to appear and present his claim for compensation for the injury under the terms of the statute.Having given notice, and failing to file suit, or present a cross-action within the twenty days, would certainly not put him in a worse position than if he had given no notice at all.

No doubt the cross-action was timely filed.In the recent case of Maryland Casualty Co. v. Reel et al.(Tex. Civ. App.)64 S. W.(2d) 1047, 1048, the Industrial Accident Board made an award to Reel, the employee, against the company.Reel appealed to the district court, and likewise, and in due course, the insurance company also appealed by separate proceeding.The second case, that of the casualty company, was first taken up for trial, and Reel presented a plea in abatement to the suit upon the ground of the pendency of the former suit by him involving the identical cause of action.The trial court sustained the plea in abatement, and dismissed the second suit and refused the company's motion to consolidate the two causes.The appeal followed, and it was held that "the trial court did not err in that disposition of the suit.When Reel filed his appeal in the district court, such action had the effect of bringing all the parties and the entire controversy before that court for a trial de novo.If the insurer [Insurance Company] desired to contest the previous award to Reel, it was its duty and privilege to do so in that proceeding, by way of cross-action."(Italics ours.)Citing many authorities.This holding, we think, is sound and supported by the authorities.The logic of it is that when one of the interested parties has perfected an appeal from the award of the board, and thereby carried all the issues and interested parties into the trial court, it is a useless and futile thing for another of the interested parties to proceed to file an independent suit or appeal.After the suit is filed by one of the parties, the litigation rests in the trial court for the benefit of all of the interested parties, and in a case like this the claimant has his right to a final hearing upon the merits of his claim under the pleadings deemed sufficient as an original proposition, or made so by amendment under the rules of procedure in our courts.The claimant is vitally interested in the substance of the litigation the appealing party timely puts in the court.

Stated differently, if the litigation was carried to the trial court by the carrier's suit, the claimant's right under the appellant's pleadings remained intact (notwithstanding the nonsuit may have been granted) to be urged and claimed under proper pleadings at any time prior to a dismissal of a claimant's cause for want of prosecution.We find no statute or authority which in any wise limits or circumscribes such right to affirmative relief that inheres in the very nature of the action under the Workmen's Compensation Law(Vernon'sAnn. Civ. St. art. 8306 et seq.), which should always be liberally construed to effect its beneficent purpose.

Subdivision 8, art. 10, R. S. 1925, under the subject of the "Construction of Laws of Texas," reads:

"The rule of the common law that statutes in derogation thereof shall be strictly construed shall have no application to the Revised Statutes; but the said statutes shall constitute the law of this State respecting the subjects to which they relate; and the provisions thereof shall be liberally construed with a view to effect their objects and to promote justice."

Further, we think that article 2182, R. S. 1925, properly construed affords no basis for the appellant's contention in so far as it is claimed that plaintiff's nonsuit would in any way affect the...