*1 et al. D. N. v. Mrs. bond, supersedeas Decided, for additional No. 6430. on motion February 20, 1935. February 26, case, On the merits rehearing, On March 623; Series, 1052.) (79 W., Series, 2d 2d *2 Elkins, Vinson, Hightower, Sweeton and M. all & Weems C. Houston, in error. Where an Compensation the Workmen’s through negligence Act is killed compensation party aof third and the pays compensation,
insurer and assumes but fails bring damages against negligent and refuses to suit for party beneficiaries, third either in its name that of the ben- bring party eficiaries can suit third only recover pensation paid the amount of sustained above the com- Dillingham, assumed. Mitchell v. 22 S. 971; College Merritt, Fed., (2d) Trustee v. 54 of Bowdoin W. 55; opinion. and other cited in cases Houston,
Bryan, Cosby, Bering, Bell Suhr & Chas. W. defendant in error. question subrogation. Ry. H. & S. A. On the Galveston Wells, 46; Texas, (2d) Id., 310, 50, v. 121 Co. 15 W. W. S. 247; Co., (2d) v. A. Wilson G. Stowers Furniture 352; Morris, (2d) v. Schnick S. W. Judge
Mr. CRITZ of the delivered Commission for the court.
ON FOR ADDITIONAL BOND. MOTION SUPERSEDEAS judgment Perry Daisy Perry Mrs. D. N. recovered Texas, County, the District Court of Harris Company $8,200.00 $13,200.00 apportioned Gas & Fuel $5,000.00 Daisy Perry. Mrs. Also Hartford suit, Indemnity Company, Accident and recovered the same Company for the Houston Gas and provided Hartford Acci- $1313.20. dent should recover from Daisy Perry the sum of out of their $680.00 Company. The from Houston provided also that Hartford Accident & recover certain further sums out *3 Daisy Perry. perfected appeal Houston Gas & Fuel from judgment filing super- Appeals by above to the Court of Civil signed $30,500.00, by principal sedeas bond it as Lloyds surety. Casualty Company New York as hearing On final in the of Civil above cause Court Appeals things in all of the district court was awarding except affirmed Hartford the item in the Accident & was reduced $803-. $1313.50 Supreme (2d) 50. 55 S. W. 901: The case is before the granted application writ of error of Houston Gas Company. court, duly in this
Defendants error have filed motion uncontroverted, require sworn to the Houston Gas bond, supersedeas motion to file new such principal and made is known to this court both supersedeas surety have become on the above mentioned bond principal pending appeal, such insolvent and that both duly appointed. surety are now in the hands of receivers provide: Our statutes by appeal error writ of
Art. 2272. “In all carried or cases county of Civil from the district court to the Court or Supreme Court, supersedeas bond shall or to the in which a given, insufficient shall become whenever the said bond bond, from by or insolvency on such reason of of the sureties cause, appeal writ of or court in which the said other showing insuffi- pending, shall, upon proper error is supersedeas giving being made, require additional ciency original, approved the clerk bond like amount as the pending.” is appeal of error or writ of the court in which said comply with the rule “Upon Art. failure to ordering supersedeas court the execution of said additional period twenty days bond within a after such order is served appeal the court in pending which said or writ of error is shall court, directing permitting an issue order to the trial or from; appealed issuance of execution on the but said appeal dismissed, upon or writ error shall not be but continue appealed the docket as if cause had said been or writ of error granted bond, provided cost the clerk of the court in which appeal pending said or writ of error is satisfied that original bond is still sufficient when considered as a cost bond.”
Art. 2274. “In the event that said clerk shall consider the original supersedeas said bond insufficient when considered as bond, appeal a cost then the said or writ of error dis- shall be appellant twenty- missed unless the in error within days after served the clerk that notice said bond is purpose bond, deemed insufficient for the ex- of the cost shall satisfactory clerk, ecute a new bond to said sufficient to secure payment costs, accrued, might or that theretofore appeal prosecution thereafter accrue in the further of the said giving original or writ of error. The of said additional bond or bonds shall not release the of the sureties on original supersedeas bond.” supersedeas
From what has been said it evident that super- bond above mentioned has become insufficient both as sedeas bond and as a cost bond.
It is therefore ordered that the Houston Gas & Fuel Com- pany hereby required, twenty days be and it within after *4 copy it, give of an this order has been served to additional supersedeas bond, original and bond the same amount as its given if such bond is not within mentioned the clerk of the time directing this court an order the trial court and will issue to permitting judgment here the issuance of execution on the appealed from. Company
It is further if Houston & Fuel ordered Gas court, specified, shall fail to this within the time above file with shall, supersedeas required, within additional bond above satisfactory time, to the clerk file cost an additional bond court, to him sufficient of this in amount to be fixed and accrued, and there- payment heretofore secure the of all costs appeal. prosecution of this after to accrue in the further bonds if of the above It is further ordered that neither of given appeal and writ specified this within the time above error shall stand dismissed. court issue shall that the clerk of ordered provided for, have all notices
and served hereinabove and that giving of additional hereunder bond shall release original liability surety supersedeas under the of bond. Opinion adopted by Supreme February
n THE ON MERIT OF THE CASE. Judge TAYLOR delivered the of the Commis- Mr. Appeals, of B. sion Section error, Perry, Mrs. D.
Defendant N. and as herself friend her minor next sued & Fuel Houston Gas Company Indemnity Company for and Hartford Accident & Perry, D. N. on account of death of husband Perry, daughter, Daisy Perry; father of the minor Perry, Perry and sued also for benefit of Vera M. O. Perry. H. Daniel alleged
Plaintiff that D. N. was an Estate, Hospitals Hermann a to the com- subscriber workmen’s pensation act, and that had issued such; policy insurance to the subscriber as Company Indemnity that as of the death of result paid doctors’, hospital fees the amount had and nurses’ to plaintiff compelled pay $1,000, funeral and that had been shortly alleged expenses in Plaintiff also that the sum $400. Perry’s Company Indemnity lia- after admitted its death plaintiff, bility policy began payments its its thereby acknowledged Perry’s death its account of Indemnity $7,200, pleaded in the sum and further subrogated rights plaintiff Company entitled her husband and on account of the death of right subrogated plaintiff’s action provided in the sum said to the extent of & Fuel Gas requested though had been policy; that rights against subrogation the Houston file suit under its plain- Company, to do and that it had declined so making Company a filing therefore suit tiff was through subrogation. acknowledging party its suing use alleged for the that she was It is not hand Indemnity Company, but on the other and benefit of individually alleged behalf of herself it is suit daughter of herself the minor friend of and as next *5 parties above husband, other and for benefit deceased concluding petition plaintiff in her appears also named. against Indemnity recovery anything pray for for does recovery prays for for her- Company, the other hand on but daughter, Indemnity- mention of the and makes no self and Company prayer. in her Company’s & Fuel trial answer consists
The Houston Gas denial, general demurrer, general plea of contribu- of a and negligence part Company tory deceased. The on the of the co-defendant, the In- makes no mention in its answer of its prayer any demnity Company, and the answer contains no kind. though Indemnity Company duly with notice of
The served seeking any suit, pleading kind did not file character of against Company, its co- & Fuel of defendant, plaintiff Houston Gas transcript In fact the does
in error here. the In- any pleading behalf of whatsoever on not contain regularly notwithstanding demnity Company it before court. trial prior Indemnity disputed Company
It is not pay filing obligated to by plaintiff, bound itself and suit Compensation Act compensation pursuant to the Workmen’s daughter pleaded $7,200 Perry as to Mrs. by plaintiff, $3,600 her in the sum per for payable rate week at of $10.00 payable manner Mrs. a like amount same daughter. disputed Nor doctors’, hospital and fees in sum of nurses’ $803.50. the defendants. No evidence was offered behalf of individually in the jury The for Mrs. $8,000 $5,000 friend for sum of for as next Judgment expenses and reasonable funeral in the $200. $8,200 Perry for was entered the trial court favor of daughter $5,000 Houston Gas and in favor of her for In- Judgment Company. in favor of & Fuel was entered Company under demnity Houston Gas doctors’, hospital and subrogation right $1,313.50 for its admitted fees was for such nurses’ fees. The correct amount by plaintiff judgment awards appeal The be $803.50. Houston Gas Company a compen- $680, the assumed the amount already weekly installments. sation nothing ben- Perry recover that Mrs. decreed Perry. Com- Vera, M., H. Daniel efit of O. Appeals reformed pany appeal. of Civil did not The Court reducing the only the extent of trial court fees doctors’, hospital nurses’ recovery for amount of respects $803.50, affirmed all other (2d) 901. court. W. trial 55 S. *6 principal questions
The presented in are effect whether the awarding judgment trial court erred in in favor of the In- demnity through subrogation doctors’, for nurses’ hospital fees, deducting and for not from the amounts of damages by jury plaintiff the individually, and as next friend for her respectively, the amount of the Indemnity Company’s compensation liability in the $3,600 each. rights governed by Sec. 6-a article Compensation Act, 8307 of the Workmen’s which reads: injury compensation “Where the payable which under this law creating legal was caused under circumstances liability person in some pay other than the subscriber respect thereof, employe option may the at his proceed against person either at law that to recover against or compensation the law, association for under this against both, proceed but not and if he elects to at law person subscriber, the other than the then he shall not en- be compensation titled compensation this If law. be by legal injured claimed under law employe the or his beneficiaries, subrogated then the association shall be to the rights injured employe of the may necessary in so far as be may injured enforce in employe the name the or his legal joint beneficiaries or in its own name and the use employe benefits of said or the beneficiaries and association liability person, the of said other case the association greater by recovers a sum than that or assumed employe legal beneficiaries, together association to the or his enforcing liability, with a reasonable such which shall cost case, by trying be determined the court out then of the sum pay so recovered association shall itself and said reimburse injured cost and the excess recovered shall be to the so employe have or his beneficiaries. association shall not adjust compromise liability or such such person injured employe third or ben- without notice to the his board, upon hearing approval eficiaries and the of the there- of.” provides compensation expressly insurer
The Act event claimed beneficiaries subrogated rights injured employee, em shall ployee third may same enforce party. It settled the decision in this state however that negli compensation insurer sue in the event the refuses to gent injured employee representatives. persons, third his Hunter, may the excess. Lancaster v. sue for Act above case cited that section is held insuring may company expressly providing quoted, by person, destroy the third does enforce the representatives, or their or his cause action *7 right in the fail sue. It is further there to sue case insurers to damages contemplates the that that in cases where held the Act employee or the exceed the amount representatives beneficiaries, or his his and recover real such entitled to sue beneficiaries as excess. W., Reinle, Ry. 264 v. S.
In Galveston-Houston Electric Co. ground re- 783, for that it a sufficient was contended was negligent alleged party third versal of a prosecute the compensation carrier had refused to suit; injured employee representatives should also that the of the permitted party. The third not be to recover holding relying Lancaster Appeals Civil above, Hunter, supra, contention. v. to sustain the stated refused construction Writ of error in the Reinle case. This was refused quoted v. unheld in Hanson of the of the statute is section W., Ponder, 35, (Com. App.), with additional al. 300 S. et reasons stated for such construction. or failure
While it is true that in view of refusal part prosecute on the against to the suit right to Company, had the
the Houston company had enforce cause of action she whatever right recovery, party, by-virtue as a third Act, Compensation quoted section of article 8307 of the Court of limited to the extent above stated. The Civil (2d) Dillingham, v. 22 in its in Mitchell S. W. consideration, analysis Act under an of the section of the makes rights parties, correctly as as well and duty states the rendering judgment involv- a case court in the trial filed, to similar ing, of facts at the suit was a state the time speaking Hickman presented. Justice that here Chief Court, says: the authorities: following deduced from
“The conclusions are right Article institute under this (1) appellants had compensation was although insurer suit, and maintain this recovery, how- party (2) Their not thereto. they in ex- any, suffered damages, if as ever, is limited to such by them. collected compensation insurance cess the amount excess, it except for such (3) existed no action Since cause 110 proper appellee plead prove
was the amount of com- pensation (4) duty insurance collected. It was the Court, rendering judgment, to deduct such amount from the amount jury. (5) Since, in the in- case, stant the total amount of less was than the compensation collected, appellants theretofore not en- were any judgment against appellee.” titled to Citing Ponder, Hunter, Hanson v. and Lancaster v. Ry. Reinle, supra; Galveston-Houston Co. v. William Cameron Gamble, W., 459; & Co. v. Ry. F. S. Panhandle & v. Co. Hurst, W., 538, Haynes Bernard, W., 251 S. v. See also Employers Brandon, Texas Insurance Association v. Texas, 636, 89 S. Dillingham is immaterial there case was no plaintiffs. This is due the fact that there was damage no compensation sustained in excess of the collected by plaintiffs. for which insurer only liable in that case had been assumed had been but *8 by plaintiffs they explains collected at the time filed suit. This why formulating (2) Chief Justice Hickman in conclusions and (3) referring compensation set question out above in to the uses statutory “paid “collected” than rather or as- the term supra. sumed.” Sec. 6-a present
In the by jury the case found are in the assumed, compensation excess of the and Company is entitled recovery from amount of Gas & the recognized compensation liability by In excess. the demnity $7,600* undisputed the facts is assumed paid weekly Indemnity Company, in by the installments paid by and the further which was the Com $803.50 pany reasonably hospital for medical aid and fees incurred following injury within first the four weeks the of the deceased. 8306, S., 7, apparent See article sec. R. that the recovery limit the of to which Mrs. is entitled difference jury by between total of for her the amount the individually and minor and the as next friend for her liability compensation by total assumed and the Assuming, filing' Company prior suit. but not deciding, liability by the In the prorated by demnity Company properly the terms of has been legal agreement of assumption the the beneficiaries between deceased, proportion and de- prorating the same the rehearing, post, p. *See
Ill aggre- compensation liability ducting the assumed gating recovery individual- $8,403.50, which aggre- ly $8,200 over one-half is entitled is the excess of of gate paid liability sum amount of the assumed and daughter $4,201.75, recovery the minor to which $5,000 through over her is the excess of entitled mother computed are the recoveries thus same sum. The amounts of judgments of $3,998.25 respectively, and the $798.25 reversed should trial Civil be court and Court of judgment accordingly. so reformed as to award being of pleading in favor There no which predicated, judgments could be eliminating any re therefrom should reformed covery in its behalf. urged Company that since
It is the Houston Gas special pleading evidence showed conditions neither nor minor, part the trial erred in infirmity on court limiting charge recovery, would to what she its during receiving expectation from her father have reasonable minority. A. H.
Such is not rule in state. Galveston W., 246, Ry. Puente, App., Civ. Co. v. 30 Texas refused), (writ (writ refused). 225 S. In Hines v. Walker employer’s federal a suit instituted under statute, pleading the absence the rule is followed proof infirmity part the minor special conditions of expectations pecuniary benefits as a basis reasonable to benefits beyond majority, be limited should opinion on appears during minority; from but accrue given rehearing effect because the rule there followed was *9 presented, case it was question and that in such federal Supreme Court duty to follow United States court’s Appeals holding of Civil the Court approve the rule. We in this case. assignments pre- error in the other find no reversible We - by the sented record. Appeals of Civil and Court judgments the trial court The individually recovery Mrs. as award are so reformed to. Perry, daughter, Daisy $3,998.25 next friend of as by elimi- reformed judgments The are for $798.25. Accident of Hartford nating in behalf therefrom Indemnity Company. affirmed. judgments are reformed as Opinion adopted by Supreme 26, February Court 1936.
ON MOTIONS FOR REHEARING. pointed It is out in defendant in error’s motion for rehear ing opinion original hearing in the inadvertently it is stated the Company $7600, and that the assump correct amount of the $7200,
tion is point opinion. as was stated at an earlier in the The erroneous statement thus made is corrected the motion granted. adding judgment This results to the $200, awarded Perry, individually, adding the sum of and in a like judgment sum to the awarded next of her as friend daughter, Daisy Perry. judgment original hearing Our judgments therefore set aside and the trial court and Court of Civil so reformed to increase here as original amount Perry, individually, of Mrs. $4,198.25, and as next friend of her to $998.25. judgment original is further our reformed as in by eliminating any recovery therefrom on behalf of the Hart ford Company; Accident and as herein reformed is affirmed. rehearing,
Plaintiff presented in error’s motion for which merely question as to the date from which as interest, reformed should bear has heretofore been overruled correctly without comment. The as reformed fixes entry the date as of the trial court. Opinion adopted by 25, Supreme March
Manuel Pilar Olivares v. Garcia. 6477. Decided
No. March (91 W., 1059.) Series, 2d