Southern Casualty Co. v. Fulkerson

30 S.W.2d 911, 1930 Tex. App. LEXIS 776

• Court: Court of Appeals of Texas
• Decided: April 26, 1930
• Docket: No. 12312.
• Status: Published

Opinions

On Motion for Rehearing.

The appellant casualty company presentá an insistent motion for rehearing. The substance of its contention is that notice given by it of its want of consent to abide by the final ruling and decision of the Industrial Accident Board, together with its subsequent institution of suit in the proper court, coupled with the appearance and answer of appel-lee Fulkerson, brought before the court all parties to the litigation, including the Century Indemnity Company, by virtue of section 5, of article 8307 of the Workmen’s Compensation Law and provided that the trial in the court to which the case is taken shall be de novo. We quote so much of that section as we think pertinent to the present discussion, towit:

“All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the board. 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 the county where the injury occurred to set aside said final ruling and decision and said board shall proceed no further toward the adjustment of such claim, other than as hereinafter provided. Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provisions of this law and the suit of the injured employee or person suing on account of the death of such employee shall be against the association if the employer of such injured or deceased employee at the time of such injury or death was a subscriber as defined in this law. If the final order of the board is against the association, then the association and not the employer shall bring suit to set aside said final ruling and decision of the board, if it so desires, and the court shall in either event determine the issues in such cause instead of the board upon trial de novo and the burden of proof shall be upon the party claiming compensation. In case of recovery the same shall not exceed the maximum compensation allowed under the provisions of this law. If any party to any such final ruling and decision of the board, after having given notice as above provided, fails within said twenty days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto, and, if the same is against the association, it shall at once comply with such final ruling and decision, and failing to do so the board shall certify that fact to the Commissioner of Insurance and such certificate shall be sufficient cause to justify said Commissioner to revoke or forfeit the license or permit of such association to do business in Texas.”

We are 'not inclined to adopt the construetion that the regulation which requires a de novo trial brings before the court a contestant before the board' who has not been given the notice required. In the case of Mingus, Receiver, v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1087, it is said, in an opinion by Chief Justice Cureton, that the rights to be enforced under the Workmen’s Compensation Law. and all the remedies provided therefor are purely statutory as distinguished from the common-law rights and remedies, and that:

“The Workmen’s Compensation Act having created the rights to be enforced and provided the remedy therefor, each step in the progress of the maturity of a claim from the time of the injury to its final adjudication’ is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies.”

Numerous authorities are cited in support of the conclusion so stated, and this opinion has been followed several times since, par-ticularily in the case of Texas Indemnity Co. v. Holloway, 30 S.W.(2d) 921, opinion by Mr. Justice Dunklin of this court on rehearing, handed down June 21, 1930.

The “jurisdiction” of a court is the power to hear and determine; the “trial” is the procedure to be observed in arriving at the determination. The procedure necessary to eonfer jurisdiction is altogether separate and distinct from that to be observed in the trial. It seems evident that the terms invoked are not to be given the literal construction apparently contended for. The functions of the board are quasi judicial only, and its proceedings are informal. No rules of procedure are prescribed. No jury is provided for, and the members in making their awards evidently proceed and act in their own way, free of technical rules. We think that in providing that upon appeal from an award the trial in the court shall be de novo, it was merely intended to indicate that the trial court should be unaffected by the proceedings or award of the board. It certainly could not have been intended that the case mu.st appear and proceed with precisely the same parties and upon the same issues, and tried in the same way as by the board. However, we need not further discuss this subject, for, regardless of the proper construction to be given the provision that upon appeal the trial shall be de novo, there are other reasons why we think appellant’s motion for rehearing should be overruled.

The appellant casualty company presents a further contention that by reason of the alleged error of this court in dismissing the Century Indemnity Company the casualty. company has been denied to its prejudice a right of contribution from the Century Company. It is undisputed that if. the Century Company is bound as an insurer at all, which it denies, it is by virtue of an obligation entirely distinct from that of the casualty company, and in a reply of the Century Company to the motion for rehearing it is Urged that under the circumstances no right of contribution exists; this contention being supported by argument and citation of authorities. But we do not find it necessary to discuss this question, for, as pointed out in our-original opinion, the petition of the casualty company wholly fails to set up any facts which in any event would entitle it to contribution from the Century Company, and wholly fails to pray for any such relief in the trial court. In addition to this, it is said in 9 Cyc. p. 795, that:.

“As a general rule the discharge or release of the direct liability of one coobligor to the obligee will not avail him as a discharge from his liability for contribution to the other coobligors unless the discharge be of a character to release the others also.”

In Hoxie v. F. & M. National Bank of Fort Worth, 20 Tex. Civ. App. 462, 49 S. W. 637, by this court, writ of error refused, it was said, quoting from the headnotes:

“A judgment against one defendant only in an action against several liable as partners, or otherwise jointly and severally liable, .does not preclude him from compelling contribution on paying the judgment.”

In no event will the casualty company be entitled to contribution from the Century Indemnity Company until the former shall have paid all or a part of a judgment against it, and we do not think that we should reverse our former ruling relating to this subject and remand the ease as to the Century Indemnity Company in order that the casualty company may have an opportunity to amend its pleadings and present the issue of contribution insisted upon.

But regardless of what we have heretofore said, upon a re-examination of plaintiff’s ’Original petition upon which the trial proceeded, we find that the jurisdictional facts alleged are that:

“The defendant, Century Indemnity Company, is a corporation with an office in the City of Dallas, Dallas County, Texas, with A. P. Cunningham as its agent, on whom service of citation may be had.

“That heretofore, towit, on the 17th day of October, A. D. 1928, the Industrial Accident Board of the State of Texas made its final award in that certain cause styled J. A. Fulkerson, Employee vs. Dallas Transportation Company, Employer, Southern Casualty Company, insurer, &/or Century Indemnity Company, Insurer; a copy of said award is hereto attached and marked “Exhibit A” for jurisdictional purposes only.

“That said award was a final award of the Industrial Accident Board of the State of Texas.”

The exhibit of the award attached to the petition shows that the award was entered on the 17th day of October, 1928, and re-. cites:

“That this claim for compensation was set against the Southern Casualty Company and Century Indemnity Company, and upon a consideration of the evidence submitted it is the opinion of the Board and it finds that said Century Indemnity Company is entitled to be acquitted and discharged from all liability herein for the reason that said Dallas Transportation Company was a subscriber of the Southern Casualty Company and therefore claim for compensation against the Century Indemnity Company must be and the same is hereby denied and refused and said Century Indemnity Company must be and is hereby fully and finally acquitted and discharged from all liability on account of said claim, and it is so ordered, adjudged and decreed by the said Board.”

The petition further alleged:

“That this plaintiff did on the 31st day of October, A. D. 1928, the same being within twenty days from the date of said award mentioned, give notice to the Industrial Accident Board of the State of Texas that it was not willing to and would not abide by said final award, decision and ruling of the said Board, and that it would within twenty days from the service of said notice file suit in some court of competent jurisdiction in the county where the said J. A. Fulkerson was injured for the purpose of having said award set aside, annulled and held for naught, and for trial de novo of this cause in the court.

“That this plaintiff does now within twenty days from the date of service of said notice on the Industrial Accident Board, and on towit, the 17th day of November, A. D. 1928, filed this suit in this court for the purposes above mentioned.”

These allegations are then followed by a prayer to the effect that defendants be cited to appear and answer herein and plead and prove their cause of action, if any they have and that upon trial hereof, this plaintiff have judgment declaring said award of the Industrial Accident Board of no force and effect, and that this plaintiff go hence without day and recover its costs.

By again referring to section 5 of article 8307, hereinbefore quoted, it will be observed that the notice of an interested party of his unwillingness to abide by the final ruling and decision of the Accident Board must be “to the adverse party and to the Board.” Reading these words in the light of Judge Cure-ton’s opinion from which we have quoted, the casualty company’s pleading nowhere stated the essential jurisdictional fact that notice of its disagreement with the ruling of the Accident Board was given to either of the adverse parties. The notice given, as alleged, was to the Accident Board only, so that we can but think the petition was fatally defective, as we originally held, in the averments necessary to confer jurisdiction of the district court over the Century Indemnity Company. Indeed, the averments alone brought neither the Century Indemnity Coinpany nor Fulker-son before the court. But Fulkerson having appeared and asked the court for affirmative relief, it may be said that the requirement referred to is in the nature of an original citation in an ordinary suit, and Fulker-son not having objected and having appeared and invoked the jurisdiction of the court, he waived the notice required by the statute.

Without further discussion, we conclude that the motion for rehearing made in behalf of the Southern Casualty Company should be overruled.