Southern Surety Co. v. Arter

Decision Date06 January 1932
Docket NumberNo. 1311-5814.,1311-5814.
PartiesSOUTHERN SURETY CO. et al. v. ARTER.
CourtTexas Supreme Court

Horace C. Bishop, of Dallas, and Gentry & Gray, of Tyler, for plaintiffs in error.

William V. Brown, of Texarkana, and Tom as G. Pollard, of Tyler, for defendant in error.

LEDDY, J.

The Industrial Accident Board made an award in favor of John J. Arter, defendant in error, against the Southern Surety Company, who had issued a policy under the Workmen's Compensation Law (Vernon's Ann. Civ. St. art. 8306 et seq.) to Arter's employer.

As a predicate for an appeal to the district court, and within the time required by law, a notice signed by the Southern Surety Company and the Southern Surety Company of New York was filed with the Industrial Accident Board. This notice reads as follows:

"You are hereby notified that the Southern Surety Company of New York does not and will not agree to comply with and abide by the award made by the Industrial Accident Board in the above entitled case on the 3rd day of May, A. D. 1929, wherein compensation was awarded said John J. Arter at $12.12 per week and wherein a certain portion of which was awarded to Wm. V. Brown, attorney-at-law, Texarkana, Texas.

"You are further notified that the Southern Surety Company of New York will bring suit in a court of competent jurisdiction within 20 days after the making of this notice, to set aside and hold for naught the said mentioned award.

                  "Southern Surety Company and
                  "Southern Surety Company of New York
                                   "By A. D. Nowakowsky"
                

Subsequent to the giving of this notice, and within proper time, the Southern Surety Company and the Southern Surety Company of New York filed their petition in the district court of the county in which defendant in error was injured, seeking to set aside the award thus made against the Southern Surety Company.

The record shows that in the district court the following agreement was made between the parties:

"It is agreed by and between the parties to this suit that both plaintiffs at all the times herein mentioned had a permit to do business in the State of Texas from the Commissioner of Insurance.

"It is further agreed that at the time the award was made in this case against Southern Surety Company the Southern Surety Company of New York had already taken over and re-insured the insurance in this cause and all other compensation business theretofore written by the Southern Surety Company, and said Southern Surety Company of New York had taken over the reserves theretofore set aside by the Southern Surety Company for said claims and had assumed the liability on said claims, and that said action on the part of said companies was presented to and approved by the Commissioner of Insurance of the State of Texas.

"It is further agreed by and between the parties to this suit that at the time the said John J. Arter received his injury on the 11th day of December, 1928, Gifford, Hill & Company, Incorporated, was a subscriber under the Workmen's Compensation Act of the State of Texas and carried a policy of workmen's compensation insurance on its employees issued by the Southern Surety Company, which was taken over sometime during the year 1928 by the Southern Surety Company of New York and prior to the injury of the said John J. Arter herein complained of."

Upon the trial, the defendant in error, by proper plea, challenged the jurisdiction of the district court to set aside the award of the Industrial Accident Board, for the reason that the Southern Surety Company, against whom the award was made, failed to file the notice required by the statute that it would not abide by the award of the Industrial Accident Board, and that it would file suit in the district court to set the same aside. This plea of defendant in error's was overruled. At the close of the evidence, the trial court peremptorily instructed the jury to render a verdict against defendant in error on his cross-action under the view that the injuries for which he sought compensation were not compensable under the Workmen's Compensation Law.

Upon appeal, the Court of Civil Appeals decided that the district court should have rendered judgment dismissing plaintiff in error's attempted appeal from the decision of the Industrial Accident Board, on the ground that the Southern Surety Company, against whom the award was made, had failed to file the notice required by the statutes of this state that it would not abide by such award, and that it would bring suit to set the same aside.

It is undisputed that the Southern Surety Company of New York was not a party to the proceeding for compensation filed by defendant in error before the Industrial Accident Board. In that proceeding, the claimant sought an award only against the Southern Surety Company. The award was made against that company. There is nothing in the record of the trial before the Industrial Accident Board showing that the Southern Surety Company of New York was in any way interested in this claim prior to the filing of its notice that it would not abide by the award made by the board.

The question presented for determination is whether the Southern Surety Company of New York, admittedly not a party to the proceeding before the Industrial Accident Board, is an "interested party," within the meaning of the statute, so as to give it a right of appeal from the award of the Industrial Accident Board.

In Ruling Case Law, volume 20, p. 662, the author defines the term "parties," when used in a statute in connection with legal proceedings, as follows: "Parties are those named as such in the record, and who are properly served with process or enter their appearance."

In the City of Dallas v. Armour & Co. (Tex. Civ. App.) 216 S. W. 222, it was determined "party" and "parties" when used in connection with suits or actions were technical words, and should be given their ordinary signification as such. This case but followed the doctrine laid down by our Supreme Court at an early date in the case of Winston v. Masterson, 87 Tex. 200, 27 S. W. 768, wherein it adopted the holding of another that a "party" is the one by or against whom a suit is brought; the party stated in the writ on the record. It was there determined that all others who may be incidentally or consequentially affected were persons interested, but not parties.

It has been held that where a suit is brought by plaintiffs suing for themselves, and on behalf of all others similarly interested, the persons not named are not parties within the Constitution, article 5, § 11, prohibiting any judge from sitting in any case where either of the parties may be connected with him by affinity or consanguinity, and this is true, notwithstanding the judge, as a member of the class in whose behalf the suit is brought, is bound by the judgment rendered in such proceeding. International & G. N. R. Co. v. Anderson (Tex. Civ. App.) 174 S. W. 305; Texas Employers' Ins....

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