Stepp v. EMPLOYERS'LIABILITY ASSUR. CORPORATION, 191.
| Decision Date | 22 December 1939 |
| Docket Number | No. 191.,191. |
| Citation | 30 F. Supp. 558 |
| Parties | STEPP v. EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED. |
| Court | U.S. District Court — Northern District of Texas |
W. B. Handley, of Dallas, Tex., for the motion.
Julian Hyer and Boykin & Seideman, all of Fort Worth, Tex., opposed.
The plaintiff claims to have been an employee, in the state of New Mexico, of J. P. White Company. That on October 26th, 1937, while in the regular course of his employment, a truck in which he was riding, turned over, pinning him beneath it, and that his resultant injuries were a fractured leg, near the hip, a broken left ankle, and serious oil burns. That the defendant was the workmen's compensation insurer of the said employer. That it hired two El Paso physicians to operate upon him, after the accident, taking him to an hospital in El Paso for that purpose. That in the operation, his ankle was cut open, and three ordinary nails driven into the bones. That the nails later infected his ankle, causing a continual drainage, and that he is totally and permanently disabled.
He sues for the benefits to which he is entitled under the New Mexico statute dealing with such compensation. Comp.St. N.M.1929, § 156-101 et seq. He now lives in Texas, and the defendant is chartered under the laws of Great Britain, with its principal office in Boston, doing business in the states of New Mexico and Texas, with its Texas headquarters in Dallas, where this suit was brought.
The defendant moves to dismiss on three grounds: (a) The cause arises under a statute in New Mexico and is different from the compensation law of Texas. Vernon's Ann.Civ.St.Tex. art. 8306 et seq. The procedure and method of administering the New Mexico act may be enforced only in the (b) The claim for compensation was not filed within one year. (c) A district court of the state of New Mexico has entered a final judgment in a suit by the plaintiff against the defendant, wherein the plaintiff recovered $2500, and that it was therein adjudicated that certain other benefits which he had received, together with the amount mentioned, were in full settlement of his claim.
Upon a hearing the testimony seems to show that the claim was filed within the time required by the statute. Comp.St.N.M.1929, § 156-113. The plaintiff asserts that the New Mexico judgment was secured by fraud; that he had no part in any of its proceedings; that the suit was instituted not by him, but by someone else, and that he was induced to accept $2500 by fraudulent misrepresentations made to him. These two questions, therefore, may be tentatively ruled against the defendant in so far as this motion is concerned.
The first ground for dismissal calls for more extended consideration. The New Mexico compensation statute is administratively quite unlike the Texas statute. There is no Board in the New Mexico procedure. The court is the officiating and administering agent. While the New Mexico statute allows the employer to be made a party to a suit against the insurer, such a party is only nominal. In this suit the defendant has already assumed its liability to the plaintiff in the stead of the employer. The judgment must contain an order directing the payment of amounts at regular intervals during the continuance of the disability, and executions are made by the clerk of the court upon the filing of an affidavit by the workman, of nonpayment, and of the continuance of disability, provided such execution shall not issue if the liable party shall have filed an application for the appointment of a physician to examine the workman. In that event, execution shall await the further order of the court. A judgment may be reviewed and either diminished, or, terminated, if the facts developed at a hearing for that purpose show a decrease, or, termination of disability.
This court is confronted by a divergent holding of the Circuit Court of Appeals for this circuit, and of a high court of the state of Texas. These two holdings are shown respectively, in United Dredging Company v. Lindberg et al., 18 F.2d 453, in 1927, and Johnson v. Employers Liability Assurance Corporation, Tex.Civ.App., 99 S.W.2d 979, in 1936. Both cases were based upon the Louisiana statute, Act No. 20 of 1914, and both cases were brought in Texas. The national court held that the rule that a statute of one state will be enforced by courts outside of that state should be applied to the workmen's compensation laws, "unless some insuperable obstacle is presented." The Louisiana statute...
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