
    MARYLAND CASUALTY CO. v. BAKER et al.
    (No. 269.)
    
    (Court of Civil Appeals of Texas. Waco.
    Oct. 8, 1925.
    Rehearing Denied Nov. 19, 1925.)
    1. Master and servant &wkey;>4l7(4'/2) — Filing of notice of appeal and suit to. set aside award by one of two surety companies against whom award made suspends award.
    Where, after award by Industrial Accident Board against two surety companies, one of them, within 20 days, gave notice of appeal, and within 20 days after such notice sued to set aside award, award was vacated or at least suspended, and could not be basis of suit by claimant for enforcement of award against other surety company.
    2. Master and servant <&wkey;4l7(4!/2) — Notice of appeal and suit by one of surety companies against whom award made; with answer and cross-action by claimant gives district court jurisdiction of claim and parties.
    After award against two surety companies, notice of appeal and suit in district court by one of surety companies, wherein other intervened, and claimant filed answer and cross-action, helé to give district court jurisdiction of claim and all parties interested.
    Appeal from District Court, McLennan County; Sam R. Scott, Judge.
    Suit by Mrs. M. A. Baker and others against the Maryland Casualty Company. From a judgment for plaintiffs, defendants appeal.
    Reversed and remanded, with directions.
    Jos. W. Hale, of Waco, and Hitzfeld & Lynch, of San Antonio, for appellants.
    Muse, McCutcheon & Muse, and Currie McCutcheon, all of Dallas, and Witt, Terrell & Witt, of Waco, for appellees.
    
      
      Writ o£ error reiused January IS, 1926.
    
   Statement.

STANFORD, J.

During October, 1923, F. D., Tuttle was a subscriber to the Employers’ Liability Act by virtue of a policy of insurance carried by him for the benefit of his employees with the Ocean Accident & Guarantee Corporation, Limited, and the Beverly Oil Syndicate was a subscriber under said act by virtue of a policy carried by it for the benefit of its employees with the Maryland Casualty Company. On the 31st day of October, 1923, M. A. Baker was in the service of one or the other of said employers, or both of them, and on said date, while engaged in such service, received an injury resulting in his death. Mrs. M. A. Baker, the surviving wife, presented one claim to the Industrial Accident Board for compensation against both said insurance orders; said claim being No. J-11462. The board, after hearing the evidence, made its award; the parts material to the question involved reading as follows:

“That at the time said injury was suffered, the said M. A. Baker was engaged in the employment of either the said F. D. Tuttle or the Beverly Oil Syndicate or both of them. That the relations between the said F. D. Tuttle and the said Beverly Oil Syndicate were so intermingled that it is impossible under the proofs submitted to determine with exactness which of the said employers the said M. A. Baker, deceased, was actually serving, or whether he was actually serving both of them at the time said fatal injury was sustained * * * and the policy of one or the other, and perhaps both of said employers actually covered the said M. A. Baker, deceased, at the time said fatal injury was inflicted. That, due to the confused state of the proofs with reference to whether both qf said policies actually covered the said M. A. Baker at the time of said injury,- or whether only one of them in fact covered him on said occasion, the board is of the opinion that the award that is hereafter made ought to be and the same is hereby made jointly and severally against both the Ocean Accident & Guarantee Corporation, Limited, and the said Maryland Casualty Company, and it is so ordered, adjudged, and decreed by the board.”

The decree recited further:

“The board further finds that, while the award made here is joint and several against both the Ocean Accident & Guarantee Corporation, Limited, and the Maryland Casualty Company, and that the right of the claimant is made in whole and complete against each of said companies, yet it is not intended that there shall be a full payment of the award by each of said companies, or that there shall be a double recovery, and that!, notwithstanding said joint and several character of said award, the payment" of one full benefit by both of said companies together, or whether jointly and severally made, will inure to the benefit of both of said companies, and the payment of one full recovery in accordance with said award, whether made by one of said companies separately or all of them jointly, will be in full and final acquittance and discharge of the liability of all of said insurance companies.”

This suit was filed in the district court of McLennan .county by Mrs. Baker against the Maryland Casualty Company to' enfore against said company the award rendered by the Industrial Accident Board against the Ocean Accident & Guarantee Corporation, Limited, and the Maryland Casualty Company.

Appellant filed its plea in abatement and to the jurisdiction of the court in this case, setting up the following facts: (1) That within 20 days after the rendition of the award, statutory notice of appeal was given by the Ocean Accident & Guarantee Corporation, limited, and that within 20 days after such notice suit was filed by said company, and by the Maryland Casualty Company as well, in the district court of Milam county, Tex. (the county in which the accident resulting in the death of M. A. Baker was alleged to have occurred) to set aside the said award. (2) That the-said Maryland Casualty Company had likewise filed an intervening petition in the suit filed by the Ocean Accident & Guarantee Corporation, Limited. (3) That both these suits were still pending. (4) That Mrs. M. A. Baker had filed her plea in abatement and to the jurisdiction of the court in the said suit filed by the Maryland Casualty Company, but that this plea had never been acted upon. (5) That Mrs. Baker and her attorneys had filed their cross-action in the suit of the said Ocean Accident & Guarantee Corporation, Limited, setting up therein their claims for compensation and attorney’s fees and for a trial de novo in that suit.

Upon this predicate, the defendant pleaded: (a) That the appeal duly perfected by .the said Ocean Accident & Guarantee Corporation, Limited, from the board’s award, operated to set aside the said award in toto and- as to all parties, and that the award could not therefore constitute the subject-matter of any suit of which the court below could properly assume jurisdiction, (b) That the court could not properly assume jurisdiction of this suit until the question of jurisdiction was determined by the district court of Milam county, in which the said suit of the Maryland Casualty Company had been filed and was pending, since the court’s jurisdiction of this cause depended upon the lack of- jurisdiction of the district court or Milam county, (c) That, by filing their cross-action and setting up their claims for a trial de novo in the suit filed by the Ocean Accident & Guarantee Corporation, Limited, in the district court of Milam county, Tex., the plaintiffs and interveners herein had submitted their said claims to the jurisdiction of that court,, and had estopped themselves to sue upon the award as a liquidated demand; though they had attempted in their said cross-action to reserve a right of action against the Maryland Casualty Company upon said award.

Upon fha.hearing of this plea it was agreed that the facts above recited were true, though it was expressly stipulated that no notice was given by the defendant, Maryland Casualty Company, within 20 days after the rendition of the award. The said plea was overruled, and defendant duly excepted. Appellant thereupon filed its original answer, setting up the defenses presented, in substance, in its plea in abatement and to the jurisdiction, and other matters not necessary to be here stated. The court sustained special exceptions to the appellant’s defenses set up, and, after overruling appellant’s motion for a continuance, the court rendered judgment in favor of appellees and against appellant for'the principal sum of $8,000, with $60 interest, $960 penalty, and $3,000 attorney’s fees.

Opinion.

By several assignments, appellant contends, in effect, that the award of the Industrial Accident Board made in this case had been suspended by an appeal, and that therefore this suit could not be maintained to enforce said award. The claim of ap-pellee as presented to the board was only one claim in favor of Mrs. Baker, growing out of one accident, resulting in the death of her husband. As to whether her claim was against the Ocean Accident & Guarantee Corporation, Limited, or whether it was against the Maryland Casualty Company, or both of them jointly, depended upon whether her husband, at the time he received the fatal injury, was performing services for E. D. Tuttle, who carried the Ocean Accident policy, or performing services for the Beverly Oil Syndicate, which carried a policy for the benefit of its employees in the Maryland Casualty Company, or was performing services for both of said employers at said time. So appellee, not being able to ascertain whether her claim was against the one or the other, or both of said insurance companies, properly presented same to the Industrial Accident Board against both of said insurance orders, and said board properly docketed and considered said claim as one claim against both said companies. On the hearing, the Industrial Accident Board found that the relations between 3?. D. Tuttle and the Beverly Oil Syndicate were so intermingled that it was impossible to determino which of said employers the deceased was actually serving, or whether he was actually serving both of them at the time said fatal injury was sustained, so said board, on August 9, 1924, entered its judgment, decree, or award in favor of appellee against both of said insurance companies, jointly and severally.

The award in this case being against the two insurers jointly and severally, under the facts above stated, did the appea by the Ocean Accident & Guarantee Corporation, Limited, operate to set aside said award or suspend same in its entirety as to all parties? It seems, that our higher courts have not passed on this exact question, and it seems our Employers’ Liability Act contains no provision expressly covering the question here involved. This being true, we think we should look to and be governed by the general principles of law in. this state applicable to appeals generally. It bas been frequently held by tbe Courts of Civil Appeals in tbis state that suits to set aside awards of tbe Industrial Accident Board, since trials therein are required to be de novo, are similar in effect to appeals from tbe judgments of justices of tbe peace to the county court. Georgia Casualty Co. v. Griesenbeck (Tex. Civ. App.) 210 S. W. 273; Texas Employers’ Ins. Ass’n v. Pierce (Tex. Civ. App.) 230 S. W. 872; Texas Employers’ Ins. Ass’n v. Nunamaker, 267 S. W. 749 (writ of error denied); Texas Employers’ Ins. Ass’n v. Knouff (Tex. Civ. App.) 271 S. W. 633. And it bas been continuously and consistently held in tbis state for many years that an appeal from a judgment of a justice of tbe peace by one party to such judgment vacates tbe same as to all parties to said judgment, and brings tbe entire case, with all of its parties and issues, before tbe coiinty court for trial de novo. Moore v. Jordan, 65 Tex. 395; Ingraham v. Rudolph, 55 Tex. Civ. App. 609, 119 S. W. 906; Lasater v. Streetman (Tex. Civ. App.) 154 S. W. 657; Ayers v. Smith (Tex. Civ. App.) 28 S. W. 835; M., K. & T. Ry. Co. v. Mosty, 8 Tex. Civ. App. 330, 27 S. W. 1057. So it necessarily follows, w© think, in tbis case, that tbe appeal duly perfected by giving tbe notice and filing suit within tbe time prescribed by article 5246 — 44, Vernon’s Ann. Civ. St. Supp. 1918, by tbe Ocean Accident & Guarantee Corporation, limited, effectually vacated, or at least suspended, tbe award of tbe Industrial Accident Board, and brought tbe entire case, with all its parties and issues, before tbe district court of Milam county for final disposition by trial de novo.

In tbe case of Moore v. Jordan, supra, our Supreme Court, by Justice Stay ton, said: “An appeal from” a “judgment, by any party against whom it” is rendered annuls said judgment as to all said parties. “Tbis is believed to be tbe rule in all cases of joint judgments where, on appeal, tbe trial is de novo. Powell on App. Pro. .357, 373; Freeman on Judgments, 328; Curtis v. Beardsley, 15 Conn. [518] 423; Bank v. Wheeler, 2S Conn. [433] 441 [73 Am. Dec. 683]; Campbell v. Howard, 5 Mass. 378.” Tbis bas long been the rule of law, not only in Texas, but most, if not all, tbe other states. It is an important and salutary rule, intended to prevent confusion, complications, and injustice, and intended to enable tbe court to which such appeal is taken to have all the parties and tbe entire subject-matter of tbe suit before him — in other words, to have the entire case before him as it existed in tbe court below, in order that it may be tried de novo, and in order that justice might be done as to all parties at interest. Such rule of law is also in consonance with tbe general policy’of our law to settle all matters between tbe same parties and between all parties as to tbe same subject-matter, in tbe same suit. Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423; King v. Parks, 26 Tex. Civ. App. 95, 63 S. W. 902; Craddock v. Goodwin, 54 Tex. 582; Hume v. Perry (Tex. Civ. App.) 136 S. W. 598; Story on Eq. Plead. § 76A.

It is equally important that tbe above rule of law be applied in appeals from awards of tbe Industrial Accident Board, and wa think tbis case is a good illustration of tbe importance of its application. Ap-pellee bad only one claim, growing out of one transaction. She did no.t know and could not ascertain whether it was against tbe one or tbe other or both of said insurance companies. Under tbis state of facts, proper practice required her to prosecute said claim before tbe board, and, after appeal from the award of tbe board, to prosecute same in tbe courts against both insurance companies in one suit. But if both were required to appeal by filing suit, unless they joined by agreement, it would result in two suits in tbe district court, and probably ■more; besides, serious complications might arise and injustice be done one or more of tbe parties. So we think; clearly, tbe appeal by tbe Ocean Accident & Guarantee Corporation, Limited, vacated, or at least suspended, the award of tbe board, and brought tbe entire case, with all of its parties and its issues, before tbe district court of Milam county for final disposition by trial de novo, and said award, having been thus vacated or suspended, could not be made tbe basis of a suit in tbis court for its enforcement.

Tbe record discloses further that appellant filed its petition of intervention in tbe suit filed by the Ocean Accident & Guarantee Corporation, Limited, in tbe district court of Milam county, and tba^t appellee’s attorneys intervened in said suit and that appellee herein, Mrs. Baker, and her said attorneys, as interveners in said suit in Mi-lam county, have all filed their answer and cross-action in said suit in Milam county, setting up their claims for ^compensation’and attorney’s fees arising out of tbe (leath of M. A. Baker, and gaid suit, with the state of tbe pleadings as above stated, was pending at tbe time tbis suit was filed. We think, not only that tbe award was vacated or suspended, but that the district court of Milam county acquired jurisdiction of the claim on which said award was rendered, and all parties interested therein.

There are other assignments of error, but, in view of tbe disposition we have decided ■must be made of tbis case, it is unnecessary to consider, same. We sustain all of appellant’s assignments challenging tbe right of tbe trial court to entertain jurisdiction of tbe subject-matter of tbis suit, and reverse and remand tbis cause, with instructions to tbe trial court to dismiss same. 
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     