Standard Insurance Company v. Isbell
| Decision Date | 07 September 1956 |
| Docket Number | Civ. A. No. 1172. |
| Parties | The STANDARD INSURANCE COMPANY, a corporation, Plaintiff, v. Billy Oliver ISBELL, Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
Fred K. Newberry and Royal H. Brin, Jr. (of Strasburger, Price, Kelton, Miller & Martin), Dallas, Tex., for plaintiff.
Shirley M. Helm (of Helm & Jones), Houston, Tex., for defendant.
Plaintiff instituted this suit in this Court and division seeking to set aside a final award and decision made by the Industrial Accident Board of the State of Texas on March 26, 1956, under the terms of which award and decision plaintiff was ordered and directed to pay to defendant certain workmen's compensation benefits under the Workmen's Compensation Law of the State of Texas.1 The plaintiff alleges in its complaint that it is a corporation organized and existing under and by virtue of the laws of the State of Oklahoma, that it has a permit to do business in the State of Texas, that the defendant is a resident and citizen of Montgomery County, Texas, and that the amount in controversy herein exceeds the sum of $3,000 exclusive of interest and costs.
The matter now before the Court is the defendant's motion to dismiss for improper venue. As grounds for the motion defendant contends that, since jurisdiction of this Court is invoked solely under the provisions of Title 28 U.S.C.A. § 1331 because of the diversity of citizenship between the parties and the amount in controversy, venue of this cause is not properly in this district because neither the plaintiff nor the defendant resides in this district.
Defendant is a resident and citizen of Montgomery County, Texas, which county is not in this district but is in the Southern District of Texas. Defendant's personal injury forming the basis of the award and decision of the Industrial Accident Board of the State of Texas, above referred to, occurred in Grayson County, Texas, within this district and division. The defendant has in nowise controverted the allegations in plaintiff's complaint to the effect that plaintiff is an Oklahoma corporation and has a permit to do business in the State of Texas. Attached to plaintiff's brief opposing defendant's motion to dismiss for improper venue is an affidavit of one of the attorneys of record for plaintiff wherein it is stated, in effect, that plaintiff has a lawful permit to do business in the State of Texas, including this district, and that it is, in fact, doing and carrying on its business, namely the insurance business, in this district. This affidavit is not controverted or otherwise contested by the defendant. Therefore, for the purposes of the motion now before the Court it will be assumed that the plaintiff is a corporation incorporated under and by virtue of the laws of the State of Oklahoma, that it has a permit to do business in the State of Texas, and that at all pertinent times it was and is doing business within this district.
The Workmen's Compensation Law of Texas provides, in effect, that any interested party who is not willing and does not consent to abide by the final ruling and decision of the Industrial Accident Board of the State of Texas shall, after giving appropriate notice, bring suit in the county where the injury occurred to set aside said final ruling and decision, and in the event such suit is brought in any county other than the county where the injury occurred, the Court in which same is filed shall, upon ascertaining that the suit was not brought in the county in which the injury occurred, transfer the case to the proper court in the county where the injury occurred.2
In so far as jurisdiction is concerned, as distinguished from venue, there is no question but what this Court has jurisdiction of this case.3 The question presented by the motion is purely one of venue.
The plaintiff contends that venue is properly in this district and division because: (1) The county where defendant received the injury forming the basis of his claim for workmen's compensation benefits is in this district and division, and (2) plaintiff is a resident of this district for venue purposes.
Since jurisdiction of this Court of this action is founded only on diversity of citizenship, venue is in this district only if either the plaintiff or the defendant resides in this district.4 If neither the plaintiff nor the defendant resides in this district, the fact that defendant's injury occurred in this district and division would not of itself place the venue of this action in this district and division, because as stated by the U. S. Court of Appeals for the Fifth Circuit in Murphree v. Mississippi Publishing Corporation, 149 F.2d 138, 140, "It is hornbook law that where a federal statute fixes venue of the federal courts, state laws are inapplicable."
Prior to the adoption in 1948 of Sec. 1391(c) of Title 28 U.S.C.A. the...
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