Hawthorne v. Anchor Casualty Co.
This text of 53 F. Supp. 475 (Hawthorne v. Anchor Casualty Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
On November 29, 1943, this case was dismissed on motion of defendant for want of jurisdiction. This is a hearing of plaintiff’s motion for new trial and to reinstate.
The case, which involves more than $3,000, exclusive of interest and costs, arises under the Texas Workmen’s Compensation Law, Articles 8306 to 8309a, Vernon’s Ann. Civil Statutes of Texas. The W. R. Drilling Company is the employer, plaintiff, a citizen of Texas, is the employee, and defendant, a citizen of Minnesota, is [476]*476the insurer, and it is claimed that plaintiff received an injury in the course of his employment on or about September 24, 1942, at Edna, Texas, in this District and Division, for which he claims and sues for compensation under such Law. The case was originally filed in the Corpus Christi Division, but transferred to this, the Victoria Division.
1. In defendant’s motion to dismiss for want of jurisdiction, it is contended that because the injury occurred in this Division and this suit was originally filed in the Corpus Christi Division, this court is without jurisdiction. This presents the same questions presented in Birdwell v. Indemnity Ins. Co., D.C., 48 F.Supp. 950. For the reasons stated there, I think that such contention is not meritorious. See, also, Castellano v. Indemnity Ins. Co., 52 F.Supp. 941, and Federal Underwriters Exchange v. Pugh, Tex. Sup., 174 S.W.2d 598.
2. Defendant also contends that notice was not given and this suit was not filed within the time fixed by law after final ruling of the Industrial Accident Board,1 and that this court is for that reason, without jurisdiction.
The record does not show on what date plaintiff’s claim was first filed with the Industrial Accident Board, except that in. his complaint herein, he alleges that it was duly docketed and filed by such Board, i.e., within the time fixed by Law, Article 8307, Section 4a. But the record shows that on May 19, 1943, plaintiff filed with such Board what he calls his “Petition for Lump Sum,” praying that such petition be set for hearing, and that at the hearing,, he have an award for “total permanent incapacity payable in cash and allowing to the defendant the discount provided by law.”' He later filed documents, letters, etc., showing the treatment •' plaintiff had received, his physical condition, and that he had reached “his maximum recovery.”2 On the [477]*477record thus presented, the Board ruled as shown by its letter of May 29, 1943, as follows:
“May 29, 1943.
C-2888
“In re: H. E. Hawthorne vs W. R. Drilling Company
“Claim Number: 572373
“Phillips & Anderson, Attorneys
“211 Furman Building
“Corpus Christi, Texas
“Gentlemen:
“In view of the nature of this claimant’s injury, the Board will insist that the insurance company pay weekly compensation, rather than set this case for hearing at this time.
“Very truly yours,
“Industrial Accident Board “Secretary
“MFF :mgr
"cc Anchor Casualty Company
“436 Bankers Mortgage Building
“Houston, Texas.”
Plaintiff did not then give notice nor file suit as required by Article 8307, Section 5, but on June 18, 1943, renewed his application to the Board for a hearing of his claim.3 It is clear that under Article [478]*4788309a,4 when construed in connection with Article 8306, Section 12d,5 Plaintiff could lawfully so renew his application to the Board for a hearing of his claim. In accordance with such renewed application for a hearing, the Board again examined the matter, and on June 22, 1943, again ruled. The ruling is as follows:
“Postal Zone 14, June 22, 1943.
“C-2888 In re: H. E. Hawthorne v. W. R. Drilling Company.
“Claim Number: 572373
“Phillips & Anderson, Attorneys, 634 Nixon Building
“Corpus Christi, Texas.
“Gentlemen:
“We have your letter of June 18, 1943. Our position in this case was expressed in our letter of May 29, 1943.
“Very truly yours,
“Industrial Accident Board “Secretary
“MFF :mgr
“cc Anchor Casualty Company
“436 Bankers Mortgage Building “Houston, Texas.”
The fact that the Board referred to its former ruling of May 29, 1943, does not prevent this being another and independent ruling, from which plaintiff was entitled to give notice and appeal to the courts under Article 8307, Section 5. He gave the notice and filed this suit.
But at the date of such ruling, as was true at the date of the ruling of May 29, 1943, plaintiff was being paid compensation. And while he was not then being furnished hospitalization and medical treatment, he had previously been furnishd such treatment until he “reached his maximum recovery.” Article 8309a, Vernon’s Civil Statutes of Texas, Southern Casualty Co. v. Todd, Tex.Com.App., 29 S.W.2d 973, 974; Southern Casualty Co. v. Posey, 5 Cir., 47 F.2d 1074; Munmon v. Traders & General Ins. Co., Tex.Civ.App., 170 S.W.2d 262. I construe Article 8309a to mean that since plaintiff was being paid compensation and since hospitalization and medical treatment had been furnished plaintiff until he reached his “maximum recovery,” and neither was longer necessary, the Board could lawfully, within its discretion, delay or postpone the hearing of his claim the same as if he was then being furnished hospitalization and medical treatment.
[.4] From what has been said, it follows that this case was properly dismissed for want of jurisdiction, and plaintiff’s motion for new trial and to reinstate should be overruled. Same to be, however, without prejudice in any way to plaintiff’s right to proceed under the law before the Industrial Accident Board, where the matter of his compensation is still pending.
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Cite This Page — Counsel Stack
53 F. Supp. 475, 1943 U.S. Dist. LEXIS 1912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawthorne-v-anchor-casualty-co-txsd-1943.