Maryland Casualty Co. v. Reel

64 S.W.2d 1047

• Court: Court of Appeals of Texas
• Decided: November 1, 1933
• Docket: No. 9157.
• Status: Published

Opinion

SMITH, Justice.

The Industrial Accident Board made an award of compensation to Charles E. Reel, an employee, against the Maryland Casualty Company, as insurer, under th? provisions of the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. art. 8306 et seq.).

In due course Reel appealed to the district court, and subsequently, hut likewise in due course, the insurance company also appealed to the same court in a separate proceeding.

The second case seems to have heen first taken up for action, and Reel presented a plea in abatement to that suit upon the ground of the pendency of the former suit involving the admittedly identical cause of action.

The trial court sustained the plea and dismissed the second suit, at the same time overruling the insurance company’s motion to consolidate the two suits. The company has appealed.

The trial court did not err in that disposition of the suit. When Reel filed his appeal in the district court, such action had the effect of bringing all the parties and the entire controversy before that court for a trial de novo. If the insurer desired to contest the previous award to Reel, it was its duty and privilege to do so in that proceeding, by way of cross-action. Southern Casualty Co. v. Fulkerson (Tex. Com. App.) 45 S. S.(2d) 152; Texas Employers’ Ins. Ass’n v. Romero (Tex. Civ. App.) 45 S.W.(2d) 333; Ocean, etc., Corp. v. McCall (Tex. Civ. App.) 25 S.W.(2d) 653; Maryland Cas. Co. v. Baker (Tex. Civ. App.) 277 S. W. 204; Sanchez v. Ins. Ass’n (Tex. Civ. App.) 51 S.W.(2d) 818.

The judgment is affirmed.