Texas Employers' Ins. Ass'n v. Davidson

• Decision Date: 22 January 1927
• Docket Number: (No. 11608.)
• Citation: 290 S.W. 871
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DAVIDSON et al.
• Court: Texas Court of Appeals

290 S.W. 871

TEXAS EMPLOYERS' INS. ASS'N v. DAVIDSON et al.

(No. 11608.)

Court of Civil Appeals of Texas. Fort Worth.

January 22, 1927.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suit by T. L. Davidson and others against the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board, and recover compensation under provisions of the Workmen's Compensation Act. Judgment for plaintiffs was reversed and remanded (288 S. W. 471). An order was entered vacating a former order requiring issuance of mandate without payment of costs. On motion for rehearing. Motion for rehearing overruled.

BUCK, J.

On June 19, 1926, we reversed the judgment below in this cause, and remanded the cause to the trial court. On October 16, 1926, appellees' motion for rehearing was overruled. On December 4, 1926, appellee's motion to require issuance of mandate without payment of costs came on to be heard, and, as there was no contest over the motion, and no reply thereto, we granted the motion. Appellant then filed a motion for rehearing, and urged, inasmuch as the judgment below was in part payable to appellee's attorneys, and in his petition appellee had pleaded the contract with his attorneys for one-third of the recovery, and the supersedeas bond was made payable to the appellee and to his attorneys, and there was no affidavit that the attorneys were insolvent, and were not able to pay any part of the costs, that we erred in granting appellee's motion to require the issuance of the mandate without payment of the costs. We sustained appellant's motion, vacated the former order, and declined to grant the issuance of the mandate without the payment of the costs. Thereupon appellee filed this motion for a rehearing.

In our holding that we were not authorized to require the clerk to issue the mandate in the absence of affidavits by the lawyers, parties to the record, as above shown, we relied in part on the holding in Watts v. Texas Employers' Insurance Association, 264 S. W. 189, in which this court, through Justice Dunklin, said:

"Since the defendant R. Loftin was claiming an attorney's fee as compensation to be * * * allowable to Watts, under the act, and since he filed a pleading asserting that claim and praying for a judgment thereon, we overrule his contention that the court erred in rendering a judgment against him jointly with Watts for costs of the suit.

"We think the case is clearly distinguishable from such decisions as Ft. W. & Denver City Ry. v. Carlock, 33 Tex. Civ. App. 202, 75 S. W. 931; G., C. & S. F. Ry. v. Knott, 14 Tex. Civ. App. 158, 36 S. W. 491, in that in those cases the attorneys had a contract for a contingent interest in the recovery by the clients they represented. In other words, the judgment to be recovered in those cases were solely in favor of the clients who contracted to pay the attorney's fee out of such recovery, while in the present suit the attorney's fee sued for was additional to and not a part of the compensation to be allowed Watts."

In the Watts Case, supra, Watts, the employee, recovered before the Industrial Accident Board, and the Texas Employers' Association filed a suit in the district court to set aside the award, making Watts and B. Loftin, his attorney, parties defendant. Loftin had evidently been allowed an attorney's fee by the Industrial Accident Board for...