Travelers Ins. Co. v. Fox

• Decision Date: 01 February 1963
• Docket Number: No. 16401,16401
• Citation: 364 S.W.2d 859
• Parties: The TRAVELERS INSURANCE COMPANY et al., Appellants, v. Linda Louis FOX et vir, Appellees.
• Court: Texas Court of Appeals

Page 859

364 S.W.2d 859

The TRAVELERS INSURANCE COMPANY et al., Appellants, v. Linda Louis FOX et vir, Appellees.

No. 16401.

Court of Civil Appeals of Texas, Fort Worth.

Feb. 1, 1963.

Rehearing Denied March 1, 1963.

Baker, Botts, Shepherd & Coates, and Walter E. Workman, Houston, for appellant The Travelers Ins. Co.

Raymond L. McDermott, Houston, for appellant Judy Lewis.

L. J. Able and Nick C. Nichols, Houston, and J. M. Donald, Jacksboro, for appellees.

LANGDON, Justice.

On September 20, 1960, Lester Bruce Lewis received fatal injuries while employed by Woods Home Improvements in Harris County, Texas. His death was reported to the Industrial Accident Board by the employer. The carrier, The Travelers Insurance Company, commenced payment of compensation benefits to Mrs. Judy Lewis, the widow of the deceased, within the week. On October 21, 1960, the Board received notification of a claim for Mrs. Fox, appellee herein, alleging that she was the surviving minor daughter of the deceased by a prior marriage, and reciting further that the deceased refused to support said (former) wife and children.

On November 14, 1960, Travelers wrote the Board, with copies designated for the attorneys for both Mrs. Lewis and Mrs. Fox. It acknowledged that there appeared to be two claimants to the statutory benefits. Thereafter, Mrs. Lewis and Travelers entered into a lump sum payment agreement for one-half of the benefits, it being established and undisputed that the surviving widow, Mrs. Judy Lewis, was entitled to one-half of the benefits. The lump sum agreement was authorized and approved by order of the Board dated December 21, 1960. The agreement and the Board's order approving same specifically provided that Mrs. Lewis reserved all of her rights and claims to the remaining one-half of the benefits as against all other claimants. In a letter to the Board on December 28, 1960, Mrs. Lewis reiterated her claim and requested setting and hearing at an early date.

On January 13, 1961, the Board wrote to the attorney for Mrs. Fox advising that that the insurance carrier had accepted liability; that as soon as the beneficiaries had been established the carrier would commence compensation payments. The attorney was requested to submit necessary information at his earliest convenience for the Board's consideration in a hearing to determine the legal beneficiaries.

The record clearly establishes that both Mrs. Lewis and Mrs. Fox were asserting claim to the remaining one-half of the compensation.

The Board set the claims for hearing on the merits on May 30, 1961. On that date Travelers submitted its statement and evidence as follows: 'Carrier has accepted full liability on this case. The only reason for with holding the remaining one-half of fatal benefits under the Workmen's Compensation Act is the establishment of the legally constituted beneficiaries.' On June 1, 1961, the Board made its award in which it denied the claim of Mrs. Lewis to the remaining one-half of the benefits and ordered Travelers to pay same to Mrs. Fox.

Mrs. Lewis gave her written notice of dissatisfaction with the award and intention to appeal therefrom, which was filed with the Board on June 5, 1961.

By copies of letter dated June 6, the Board advised Mrs. Fox and her attorney of this development. On June 17, 1961, Mrs. Lewis filed a suit styled Mrs. Judy Lewis v. The Travelers Insurance Company, No. 573,433 in the 127th Judicial District Court of Harris County, Texas. Travelers was duly served and answered in said case. The suit in Harris County is still pending. Mrs. Fox was not made a party to the suit nor personally served therein.

On August 18, 1961, approximately 2 months after Mrs. Lewis had filed suit in Harris County to appeal the award, the attorneys for Mrs. Fox wrote Travelers requesting payment under the Board's award. Travelers replied, expressing regrets at being unable to comply because of the Harris County Suit and furnished information concerning the suit instituted by Mrs. Judy Lewis.

On September 22, 1961, some three months after Mrs. Lewis filed suit in Harris County, this suit was instituted by Mrs. Fox, appellee herein, in the District Court of Jack County to (1) enforce the Board's award, (2) collect statutory penalties and attorneys fees, and (3) to enjoin proceedings in the suit previously filed by Mrs. Judy Lewis in Harris County under Sec. 5, Art. 8307, Vernon's Ann.Civ.St. in an appeal from the Board's award.

The case filed by Mrs. Lewis in Harris County was set for June 4, 1962, and the case filed by Mrs. Fox in Jack County was set for May 14, 1962.

In answer to this suit in Jack County, Travelers filed a sworn plea to the jurisdiction, asserting that the award upon which the suit was based had been appealed from and was therefore vacated. Mrs. Lewis filed a plea of privilege and a plea in abatement, the latter based upon the same jurisdictional grounds as Travelers' plea to the jurisdiction. The trial court overruled these pleas to which action appellants duly excepted.

The case proceeded to trial without a jury in the District Court of Jack County on May 24, 1962. On the same date the trial court entered judgment as prayed for by appellee enforcing the award of the Board, awarding statutory penalties and attorneys fees and enjoining further proceedings in the pending case filed by Mrs. Lewis in the 127th District Court of Harris County.

This appeal which seeks to set aside the judgment of the trial court is based primarily on the proposition that the District Court of Jack County did not have jurisdiction over the suit filed by Mrs. Fox to enforce the Board's award because of the prior appeal from such award filed by Mrs. Lewis in Harris County.

It is well settled in this state that when an appeal is taken from the action of the Industrial Accident Board by proper suit in the District Court that the order of the Board becomes a nullity. The Travelers Insurance Company v. Molinar, Tex.Civ.App., 331 S.W.2d 503, ref. n. r. e.

Sec. 5, Art. 8307, V.A.T.S. provides in substance that any interested party who is unwilling to abide the final ruling of the Board shall, within 20 days after such ruling file notice with the Board of such unwillingness. That within 20 days after such notice he shall bring suit in the county where the injury occurred to set aside said final ruling and said Board shall proceed no further toward the adjustment of such claim. That once such suit is filed the rights and liabilities of the parties thereto shall be determined by the provisions of this law, and the suit of persons suing on account of the death of such employee shall be against the association.

In our opinion Mrs. Lewis fully complied with all of the provisions of Sec. 5 and therefore under the holding of the Molinar case, supra, the appeal filed by her in Harris County was a 'proper suit'.

The record clearly reflects that Mrs. Lewis is an interested party. It is without dispute that she filed timely notice (within the 20 day period) of her unwillingness to abide by the final ruling of the Board and that within the prescribed 20 day period after such notice she filed suit against the association, the Travelers Insurance Company in Harris County, where the injury occurred, to set aside the Board's award. Travelers has been served in such suit and has filed an answer. The suit is still pending in Harris County.

It is our opinion under the settled law of this state that upon the filing of the suit by Mrs. Lewis in Harris County in compliance with the requirements of Sec. 5 that the final award, rulings, orders and decisions of the Industrial Accident Board were completely vacated, nullified, suspended and set aside as to all parties and issues involved. That the entire subject matter before the Board including all parties and issues were brought before the District Court of Harris County for a trial de novo.

It therefore follows that since the Board's award has been vacated by the appeal perfected by Mrs. Lewis it could not be made the basis of a suit in Jack County to enforce it. Maryland Casualty Co. v. Baker et al., 277 S.W. 204 (Tex.Civ.App., Waco), 1925, writ refused.

The decision in the case of Maryland Casualty Co. v. Baker was expressly approved by the commission of appeals in Southern Casualty Co. v. Fulkerson, Tex.Com.App., 45 S.W.2d 152 (p. 155). In its opinion the Commission of appeals stated: 'As further proof that it is the evident and plain purpose and intent of the statute to confer jurisdiction on the court to hear and determine the entire case, both as to issues and parties, when one interested party appeals from the board to the court it will be noted that the statute further provides:

'(a) 'Said Board shall proceed no further toward the adjudgment of such claim.'

'(b) 'Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provisions of this law.'

'(c) 'The court shall in either event determine the issues in such cause instead of the board upon trial de novo."

Since the procedural steps contained in Sec. 5, Art. 8307 as prescribed by the legislature are both mandatory and jurisdictional, our courts have closely scrutinized the language and requirements thereof many times. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674; Texas Reciprocal Ins. Ass'n v. Leger, 128 Tex. 319, 97 S.W.2d 677.

According to the various cases interpreting it, the apparent purpose of the statute is to permit any interested party who is brought under the jurisdiction of the Board to appeal the entire case to the District Court and thereby vest such Court with jurisdiction to preside over the litigation involving the several par...