Southern Casualty Co. v. Henry

• Decision Date: 13 July 1925
• Docket Number: (No. 1276.)
• Citation: 276 S.W. 336
• Parties: SOUTHERN CASUALTY CO. v. HENRY.
• Court: Texas Court of Appeals

276 S.W. 336

SOUTHERN CASUALTY CO. v. HENRY.

(No. 1276.)

Court of Civil Appeals of Texas. Beaumont.

July 13, 1925.

Rehearing Denied October 14, 1925.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by Alice Henry against the Southern Casualty Company to set aside a judgment and annul an award in favor of defendant by the Industrial Accident Board, on a claim filed before the Board by plaintiff for compensation under the Employers' Liability Act for injuries and death of her husband. From a judgment setting aside the final award of the Board and awarding damages, the defendant appeals. Reversed and rendered.

Howth, Adams & Hart, of Beaumont, for appellant.

G. L. Howell, Tom C. Stephenson, and C. A. Lord, all of Beaumont, for appellee.

O'QUINN, J.

The appellee, Alice Henry, brought this suit in the district court of Jefferson county, Tex., against appellant, Southern Casualty Company, praying for a judgment setting aside and annulling an award made in favor of appellant, Southern Casualty Company, by the Industrial Accident Board of this state upon a claim filed before said Board by said Alice Henry for compensation under the Employers' Liability Act of this state (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz), because of injuries and death of one Wymath Henry, husband of Alice Henry.

Due notice of the death of Wymath Henry was given to the Southern Casualty Company, and it denied liability before said Board on the ground that Wymath Henry, at the time of his death, was engaged in the performance of a maritime contract, and that the injuries which caused his death were maritime in their nature, and that therefore the Employers' Liability Act of this state had no application to the claim, and that the Industrial Accident Board had no jurisdiction of the claim, and was without authority to make an award in her favor.

After the Industrial Accident Board had made its final ruling denying an award to said claimant, Alice Henry, she gave due and legal notice that she would not abide by the award so given, and this suit was duly filed to set aside the award.

Appellant, the Southern Casualty Company, answered by plea to the jurisdiction of the district court of Jefferson county, Tex., alleging that appellee's cause of action, as pleaded, and as a matter of fact, was within the exclusive jurisdiction of the United States District Court in and for the Eastern District of Texas, and cognizable in that court only, and that same was not within the jurisdiction of the state district court, fully pleading the matters of fact showing same, and further pleading, if said plea to the jurisdiction was overruled, a general demurrer and general denial. The court overruled the plea to the jurisdiction, and the cause was tried before the court without a jury, and judgment rendered in favor of appellee setting aside the final award of the Industrial Accident Board, and awarding her judgment for $5,552.26 in a lump sum, and apportioning said judgment between appellee and her attorneys, one-third to her attorneys and two-thirds to appellee.

Motion for new trial was overruled, and the case is before us for review on appeal.

Appellant presents the following proposition for a reversal and rendition of the judgment:

"It being undisputed that deceased was working in the course of his employment in the hold of the S. S. Union City, then and there on navigable waters of the United States, within the territorial limits of the state of Texas, and engaged in loading said vessel for interstate and international commerce on the high seas, and said work being directly connected with such navigation and commerce on the high seas, the said cause was and is within the exclusive admiralty jurisdiction of the United States District Court in and for the Eastern District of Texas, and the trial court was wholly without jurisdiction to try and determine same."

The record contains the following agreement as to the facts:

"It is agreed between the parties that on the 12th day of March, 1924, Wymath Henry, the deceased, was in the employ of C. Flanagan & Sons, and that on that day he received a personal injury while in the course of his employment from which he died within a few hours thereafter; that the plaintiff in this suit, Alice Henry, was the wife of Wymath Henry, and that she timely made claim for compensation as under the compensation law of this state, and that she timely gave notice of the injury and death of her husband, as required by the compensation law, and that the accident board entered its final judgment and award in due course; that the plaintiff, Alice Henry, not being willing to abide by the ruling and decision of the accident board, which denied her compensation on the ground that the cause came exclusively within the jurisdiction of the United States, duly and timely gave notice, and within 20 days after the award was made, to the adverse parties, and to the accident board, that she was not willing to abide by the ruling, and that she would bring a suit in a court of competent jurisdiction in Jefferson county, Tex., to set aside the award; and that thereafter, duly and timely, and within 20 days from the time she gave such notice, this suit was filed to set aside the award.

"It is agreed that at the time Wymath Henry received his injuries, he was on board the British steamer, Union City, which was then moored in the harbor in the Neches river at Port Neches, in Jefferson county, Tex., and that said waters are navigable waters of the United States, and that the deceased, in the course of his...