United States Fidelity & Guaranty Co. v. Lowry

• Decision Date: 28 January 1920
• Docket Number: (No. 6141.)
• Citation: 219 S.W. 222
• Parties: UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD., v. LOWRY.
• Court: Texas Court of Appeals

219 S.W. 222

UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD., v. LOWRY.

(No. 6141.)

Court of Civil Appeals of Texas. Austin.

January 28, 1920.

Dissenting Opinion January 31, 1920.

Appeal from District Court, Brown County; J. O. Woodward, Judge.

Suit by the United States Fidelity & Guaranty Company of Baltimore, Md., against Mrs. J. S. Lowry. Judgment of dismissal, and plaintiff appeals. Reversed and remanded.

Hunt & Teagle, of Houston, and Seay & Seay, of Dallas, for appellant.

Wilkinson & McGaugh, of Brownwood, for appellee.

BRADY, J.

Appellant brought this suit in the district court of Brown county, which was the county of the residence of Mrs. J. S. Lowry, appellee, to set aside an award of the Industrial Accident Board of Texas, in which Mrs. Lowry, as the beneficiary and widow of J. S. Lowry, was allowed compensation.

The appellant was the insurer of Tom Padgett Company, of Waco, Tex., which was a subscriber to the Employers' Liability Act. The award of the board was for more than $500, and the petition in this suit alleged that Mrs. Lowry resided in Brown county, and that the injury complained of was inflicted in that county. The suit to set aside the award of the board was filed within 20 days after the rendition of the final ruling and decision of the board; and on the date of the trial appellee filed an original answer, which contained a plea to the jurisdiction of the court. The substance of the plea was that the injury did not occur in Brown county, but that the injury and the death of her husband occurred in Coke county, and concluded with a prayer that the court dismiss the suit for want of jurisdiction. Appellant excepted to this plea, upon the ground that it was in effect a plea to the venue, and that, if well taken, the cause should not be dismissed, but transferred to the district court of Coke county. This exception was overruled, and the court heard evidence and made the finding, which seems undisputed, that appellee's husband met his death in Coke county. The appellant thereupon filed a motion that the cause be transferred to Coke county, which was overruled, and the trial court dismissed the case.

There was no claim that the suit was fraudulently brought in Brown county. It seems to have been due to the mistaken belief of appellant that the injury occurred in that county.

Opinion.

This opinion will express the views of the majority of the court, Mr. Justice JENKINS having indicated his dissent from the conclusions reached. Because of our disagreement, the questions involved will be discussed with more elaboration than the majority would otherwise think necessary; but the writer will endeavor to confine the discussion within reasonable bounds, and to state the reasons for the conclusions of the majority as briefly as the importance of the question will permit, and to likewise limit the review of authorities.

The Workmen's Compensation Law (Acts 35th Leg. p. 283), in sections 5 and 5a, part 2 (Vernon's Ann. Civ. St. 1918 Supp. arts. 5246—44, 5246—45), provides procedure for the bringing of suits after an award has been made by the board. Section 5 provides that —

"Any interested party who is not willing, and does not consent to abide by the final ruling and decision of said board, shall within twenty days after the rendition of said final ruling and decision by said board give notice to the adverse party and to the board that he will not abide by said final ruling and decision. And he shall within twenty days after giving such notice bring suit in some court of competent jurisdiction in the county where the injury occurred to set aside said final ruling and decision." (Italics ours.)

The section then provides that the board shall proceed no further towards the adjustment of the claim, and that the trial shall be de novo.

Section 5a provides that where the final decision of the board is against the association, and no suit is brought to set it aside, the claimant may bring suit in some court of competent jurisdiction where the injury occurred, upon the award, and if he secures judgment shall be entitled to damages and reasonable attorney's fees. It is also further provided by that section that if an award has been made against the association, requiring the payment to an injured employé, or his beneficiaries, of weekly or monthly payments, and the association should thereafter fail or refuse without justifiable cause to pay the installments, the employé or his beneficiaries shall have the right to mature the entire claim, and to institute suit in any court of competent jurisdiction to collect the full amount, with penalties and attorney's fees. It is further provided that suit may be brought, under the provisions of section 5a, either in the county where the accident occurred, or in any county where the claimants reside, or where one or more of such claimants may have his place of residence at the time of the institution of the suit.

It is obvious that the question arising from the ruling of the trial court is whether the provisions of section 5 of the Workmen's Compensation Act, relating to the place of bringing suit, is jurisdictional, or whether it merely prescribes the venue for the bringing of the suit. If the requirement that the suit shall be brought in the county where the injury occurred is jurisdictional, the trial court did not err in dismissing the suit for want of jurisdiction; but if the statute merely prescribes the venue, which might be waived by the defendant, when the suit is erroneously brought elsewhere than provided by the statute, then the court should not have dismissed the cause, but should have transferred it to the proper county, if that privilege was insisted upon by defendant.

The language of the act is of a mandatory nature, but we believe that it was the legislative intent, in requiring that the suit should be filed in some court of competent jurisdiction where the injury occurred, to do nothing more than to fix the venue of the suit in a particular county; and if the suit should be improperly brought in the wrong county, and a plea were filed thereto, it would be nothing more than a plea to the venue, requiring the case to be transferred to the county having proper venue, if the privilege should be insisted upon by the party making the plea. The language clearly recognizes the general jurisdiction of the courts, according to the amount in controversy of the particular action, and the statute does not attempt to prescribe jurisdiction of the subject-matter. The direction is that the suit shall be brought in "some court of competent jurisdiction," thus recognizing that the jurisdiction was already fixed by law. Where do we find the provisions of law for determining the jurisdiction of a particular case, arising under this statute? The answer is: In the Constitution. (We do not find, and we have been cited to no authority considering this particular provision, but similar questions have been before the courts frequently.)

In this case, suit was filed within the time prescribed by the statute, so that the sole question to be considered is whether the failure to file the suit in Coke county, where the accident to and death of the injured employé occurred, operated to deprive the district court of Brown county, where the suit was brought and where defendant resided, of jurisdiction of either the subject-matter, or person of the defendant.

The Constitution, article 5, section 8, provides that the district court shall have original jurisdiction of all suits, without regard to any distinction between law and equity, when the matter in controversy shall amount to $500, exclusive of interest. This jurisdiction is general in the district courts, and is coextensive with the limits of the state. Under the Constitution, then, before this statute provided the right to bring suit to set aside an award of the Industrial Accident Board, the potential jurisdiction of every district court in the state existed over the subject-matter. When the cause of action asserted in this suit, under the statute, arose, this jurisdiction became actual, and reposed in the district court of Brown county to the same extent as in that of Coke county. The instant the statute gave the right and the cause of action arose, actual jurisdiction attached over the subject-matter in every district court, by virtue, not of the statute, but of the Constitution itself. Under well-settled principles, the jurisdiction over the person also existed in each district court, unless, perhaps, restrained by statutory enactment. Granting the power, was it the intention of the Legislature, in passing this law, to deprive every court of competent jurisdiction of the subject-matter, of any jurisdiction over either the subject-matter or the person, except the district court where the accident occurred? We have been cited to no authority construing this particular provision, but the question is answered by the decisions of our courts upon similar questions, which will now be briefly reviewed.

In State v. Snyder, 66 Tex. 687, 18 S. W. 106, the suit was brought by the state against Snyder, a citizen of Williamson county, Tex in the district court of Mitchell county, to cancel certain sales of public lands, and for damages. The defendant presented a plea to the jurisdiction, claiming that the suit was cognizable alone in the district court of Travis county, under the terms of the law authorizing the suit. The act (Acts 1883, p. 108) involved expressly declared that suit for the recovery of such lands "shall be brought in the district court of Travis county," and required the suit to be brought within 12 months after it took effect. Judge Stayton, delivering the opinion for the Supreme Court, said that the action was substantially one to try title to land, but, if not, the amounts alleged as the value of the land, rents, and damages, would give jurisdiction to a district court, as in any...