United States Fidelity & Guaranty Co. of Baltimore v. Lowry , 1920 Tex. App. LEXIS 147 ( 1920 )

Appellant brought this suit In the district court of Brown county, which was the county of the residence of Mrs. J. S. Lowry, appellee, to set aside an award of the Industrial Accident Board of Texas, in which Mrs. Lowry, as the beneficiary and widow of J. S. Lowry, was allowed compensation.

The appellant was the insurer of Tom Padgett Company, of Waco, Tex., which was a subscriber to the Employers' Liability Act. The award of the board was for more than $500, and the petition in this suit alleged that Mrs. Lowry resided in Brown county, and that the injury complained of was inflicted in that county. The suit to set aside the award of the board was filed within 20 days after the rendition of the final ruling and decision of the board; and on the date of the trial appellee filed an original answer, which contained a plea to the jurisdiction of the court. The substance of the plea was that the injury did not occur in Brown county, but that the injury and the death of her husband occurred in Coke county, and concluded with a prayer that the court dismiss the suit for want of jurisdiction. Appellant excepted to this plea, upon the ground that it was in effect a plea to the venue, and that, if well taken, the cause should not be dismissed, but transferred to the district court of Coke county. This exception was overruled, and the court heard evidence and made the finding, which seems undisputed, that appellee's husband met his death in Coke county. The appellant thereupon filed a motion that the cause be transferred to Coke county, which was overruled, and the trial court dismissed the case.

There was no claim that the suit was fraudulently brought in Brown county. It seems to have been due to the mistaken belief of appellant that the injury occurred in that county.

Opinion. This opinion will express the views of the majority of the court, Mr. Justice JENKINS having indicated his dissent from the conclusions reached. Because of our disagreement, the questions involved will be discussed with more elaboration than the majority would otherwise think necessary; but the writer will endeavor to confine the discussion within reasonable bounds, and to state the reasons for the conclusions of the majority as briefly as the importance of the question will permit, and to likewise limit the review of authorities.

The Workmen's Compensation Law (Acts 35th Leg. p. 283), in sections 5 and 5a, part 2 (Vernon's Ann.Civ.St. 1918 Supp. arts. 5246 — 44, 5246 — 45), provides procedure for the bringing of suits after an award has been made by the board. Section 5 provides that —

"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 some court ofcompetent jurisdiction in the county where the injury occurred to set aside said final ruling and decision." (Italics ours.)

The section then provides that the board shall proceed no further towards the adjustment of the claim, and that the trial shall be de novo.

Section 5a provides that where the final decision of the board is against the association, and no suit is brought to set it aside, the claimant may bring suit in some court of competent jurisdiction where the injury occurred, upon the award, and if he secures judgment shall be entitled to damages and reasonable attorney's fees. It is also further provided by that section that if an award has been made against the association, requiring the payment to an injured employé, or his beneficiaries, of weekly or monthly payments, and the association should thereafter fail or refuse without justifiable cause to pay the installments, the employé or his beneficiaries shall have the right to mature the entire claim, and to institute suit in any court of competent jurisdiction to collect the full amount, with penalties and attorney's fees. It is further provided that suit may be brought, under the provisions of section 5a, either in the county where the accident occurred, or in any county where the claimants reside, or where one or more of such claimants may have his place of residence at the time of the institution of the suit.

It is obvious that the question arising from the ruling of the trial court is whether the provisions of section 5 of the Workmen's Compensation Act, relating to the place of bringing suit, is jurisdictional, or whether it merely prescribes the venue for the bringing of the suit. If the requirement that the suit shall be brought in the county where the injury occurred is jurisdictional, the trial court did not err in dismissing the suit for want of jurisdiction; but if the statute merely prescribes the venue, which might be waived by the defendant, when the suit is erroneously brought elsewhere than provided by the statute, then the court should not have dismissed the cause, but should have transferred it to the proper county, if that privilege was insisted upon by defendant.

The language of the act is of a mandatory nature, but we believe that it was the legislative intent, in requiring that the suit should be filed in some court of competent jurisdiction where the injury occurred, to do nothing more than to fix the venue of the suit in a particular county; and if the suit should be improperly brought in the wrong county, and a plea were filed thereto, it would be nothing more than a plea to the venue, requiring the case to be transferred to the county having proper venue, if the privilege should be insisted upon by the party making the plea. The language clearly recognizes the general jurisdiction of the courts, according to the amount in controversy of the particular action, and the statute does not attempt to prescribe jurisdiction of the subject-matter. The direction is that the suit shall be brought in "some court of competent jurisdiction," thus recognizing that the jurisdiction was already fixed by law. Where do we find the provisions of law for determining the jurisdiction of a particular case, arising under this statute? The answer is: In the Constitution. (We do not find, and we have been cited to no authority considering this particular provision, but similar questions have been before the courts frequently.)

In this case, suit was filed within the time prescribed by the statute, so that the sole question to be considered is whether the failure to file the suit in Coke county, where the accident to and death of the injured employé occurred, operated to deprive the district court of Brown county, where the suit was brought and where defendant resided, of jurisdiction of either the subject-matter, or person of the defendant.

The Constitution, article 5, section 8, provides that the district court shall have original jurisdiction of all suits, without regard to any distinction between law and equity, when the matter in controversy shall amount to $500, exclusive of interest. This jurisdiction is general in the district courts, and is coextensive with the limits of the state. Under the Constitution, then, before this statute provided the right to bring suit to set aside an award of the Industrial Accident Board, the potential jurisdiction of every district court in the state existed over the subject-matter. When the cause of action asserted in this suit, under the statute, arose, this jurisdiction became actual, and reposed in the district court of Brown county to the same extent as in that of Coke county. The instant the statute gave the right and the cause of action arose, actual jurisdiction attached over the subject-matter in every district court, by virtue, not of the statute, but of the Constitution itself. Under well-settled principles, the jurisdiction over the person also existed in each district court, unless, perhaps, restrained by statutory enactment. Granting the power, was it the intention of the Legislature, in passing this law, to deprive every court of competent jurisdiction of the subject-matter, of any jurisdiction over either the subjectmatter or the person, except the district court where the accident occurred? We have been cited to no authority construing this particular provision, but the question is answered by the decisions of our courts upon similar questions, which will now be briefly reviewed.

In State v. Snyder, 66 Tex. 687, 18 S.W. 106, the suit was brought by the state against Snyder, a citizen of Williamson county, Tex., in the district court of Mitchell county, to cancel certain sales of public lands, and for damages. The defendant presented a plea to the jurisdiction, claiming that the suit was cognizable alone in the district court of Travis county, under the terms of the law authorizing the suit. The act (Acts 1883, p. 108) involved expressly declared that suit for the recovery of such lands "shall be brought in the district court of Travis county," and required the suit to be brought within 12 months after it took effect. Judge Stayton, delivering the opinion for the Supreme Court, said that the action was substantially one to try title to land, but, if not, the amounts alleged as the value of the land, rents, and damages, would give jurisdiction to a district court, as in any ordinary action between individuals. He then declared that the Constitution confers upon the district courts jurisdiction "of all suits for the trial of title to land," and also of suits where the amount in controversy is $500, exclusive of interest; that the jurisdiction of the subject-matter did not depend upon the statute; and that the act "determines the venue of actions to be instituted under it, but does not confer jurisdiction over the subject-matter; and under it, if no objection be made in proper time and manner by defendant, a suit might be instituted and maintained by the state in Mitchell or any other county in the state for more than 25 sections of land. District courts, under the Constitution, having jurisdiction over the subject-matter of such an action, the state, as might any other plaintiff, might maintain such an action in any county in the state, in so far as jurisdiction over the subject-matter is concerned." As to the matter of jurisdiction over the person, the court held that the venue was by the act placed in Travis county, a provision no doubt inserted for the benefit of the state, upon which the defendant might also insist, but that it was a right which the defendant might waive. It was also expressly held that —

"If no objection to the venue in such a cause be urged, the court would certainly have jurisdiction of the subject-matter of the suit and of the persons of such defendants as were served with process or appeared."

In substance, the holding of that case was that the Constitution, and not the statute, conferred jurisdiction of the subject-matter, and also of the person, if the defendant did not insist upon the venue prescribed by the statute, and that the latter could be waived whether the suit was for the recovery of land, or should be treated as an ordinary action involving over $500 in controversy.

In the case of Russell v. Railway Company, 68 Tex. 647, 5 S.W. 686, the suit was one by the railway company and others, brought in the district court of Marion county, to remove cloud from title to lands situated in ties. No part of the land was situated in Marion county, and one of the defendants filed a plea in abatement, urging that the suit should abate, because not brought in the county in which any part of the land was situated. This plea was held to have been waived, because answer to the merits had previously been made.

The eleventh subdivision of article 1198, Revised Statutes, now the fourteenth subdivision of article 1830, Vernon's Sayles' Ann.Civ.St. 1914, provides that —

"Suits for the recovery of lands, * * * suits to quiet the title to land, * * * must be brought in the county in which the land, or a part thereof, may lie."

Notwithstanding the peremptory language of this statute, the Supreme Court held that it was a mere provision for venue, and could be waived. The guardian of minor defendants in that case seasonably filed a plea of abatement, and the court held that the trial court erred in overruling such plea, and reversed the judgment, expressly holding, however, that the guardian might waive the matter in abatement, and have the controversy settled in the suit as brought.

In the case of Valdez v. Cohen, 23 Tex. Civ. App. 475, 56 S.W. 375, the Court of Civil Appeals for the Fourth District held that where a defendant was sued in the justice's court of another county than that in which he resided, and failed to appear and plead his privilege to be sued in his own county, a sale of land, under adverse judgment, would not be set aside on the ground that the court had no jurisdiction, since the defendant's failure to appear and claim his privilege was a waiver of the same. The court cited several decisions by the Supreme Court, including Masterson v. Ashcom, 54 Tex. 324, and quoted from the latter case as follows:

"There is a marked distinction between the question of a mere personal privilege to be sued in a precinct or county of residence, and which privilege may expressly or impliedly be waived, and that of jurisdiction proper, which cannot be conferred, even by express consent. The justice's court had jurisdiction over the subjectmatter, and if Ashcom was served with process, this would have given the court jurisdiction over the person, even though the suit had been irregularly brought in a precinct or county other than that of his residence, if he failed to appear and plead in abatement his privilege to be sued elsewhere."

On motion for rehearing, the court held that the territorial jurisdiction of district courts, and of justice's courts as well, is coextensive with the state, and although suits are required to be brought against parties in the counties of their domicile, and suits for the recovery of lands where the same or a part thereof are situated, yet these provisions confer a mere personal privilege, which may be lost by a failure to claim it, citing De Le Vega v. League, 64 Tex. 205; Watson v. Baker, 67 Tex. 48, 2 S.W. 375; Bonner v. Hearne, 75 Tex. 243, 12 S.W. 38; Moody v. Bank, 61 S.W. 523; Fairbanks v. Blum, 2 Tex. Civ. App. 479,21 S.W. 1009. A writ of error was denied by the Supreme Court.

In Bonner v. Hearne, 75 Tex. 243, 12 S.W. 38, it appeared that the district court of Anderson county had appointed appellee as receiver of a railway company, which had its principal office in Anderson county. The appellants had previously been appointed receivers, under the orders of the district court of Smith county. The controversy was over the possession of the railway property by the respective receivers, and the trial court concluded that the district court of Smith county had no jurisdiction to make the appointment of receivers as attempted, and that its orders were void. This holding was made by virtue of an act, which read as follows:

"If the property sought to be placed in the hands of a receiver is a corporation whose property lies within this state, or partly within this state, then the action to have a receiver appointed shall be brought in this state in the county where the principal office of said corporation is located." Acts 1887, c. 131, § 13.

The railway company was such a corporation, and its office was established in Anderson county, as found by the trial court. Despite the peremptory character of the language employed in this statute, the Supreme Court held that the action to appoint the receiver was properly brought in Smith county, away from the domicile of the corporation. This statute was held to have been intended by the Legislature to confer only a privilege upon the defendant which might be waived. The court declined to pass upon the question as to the power of the Legislature to take away the jurisdiction of district courts, other than those of the county in which corporations have their principal office, in the appointment of receivers.

In State v. Patterson, 40 S.W. 224, this court held that the district court of one county has jurisdiction to render judgment, in an action of trespass to try title to land in another county in which the defendant resides, where the defendant does not by proper pleadings assert his privilege to be sued only in the county of his residence. In the course of the opinion, Chief Justice Fisher used this pertinent language:

"The statutes that regulate the venue of actions for the recovery of land are not jurisdictional, in the sense that no other court but that of the county in which the land was situated would have jurisdiction; but these statutes, as well as the other provisions of the law relating to the place where suits may be instituted, have been held to be simply a matter of venue, and not of jurisdiction, and they confer simply upon the defendant the privilege of having the suit brought in the county pointed out by the law, and this privilege is personal to the defendant, and may be waived" — citing numerous decisions by the Supreme Court.

In Kieschnick v. Martin, 208 S.W. 948, this court held that while the seventeenth subdivision of article 1830, the general venue article of our statute, expressly provides that a suit to enjoin the execution of a judgment "shall be brought in the county in which such judgment was rendered," the statute merely provided a matter of personal privilege which could be waived. The suit was brought in Milam county to enjoin the execution of a judgment recovered in Crockett county, and we held that, notwithstanding the mandatory language of the statute, an answer to the merits waived the privilege of the defendants to have the suit brought in the county where the judgment was rendered. It is true that the Supreme Court granted a writ of error in this case, but the memorandum on the application docket indicates that the writ was granted only because the Supreme Court was inclined to think one of the defendants had not waived the privilege.

Many other cases might be cited, considering other statutes prescribing in mandatory terms that suit shall be brought at a particular place, including several of the exceptions to article 1830, the general venue article, which requires suits to be brought against persons in the county of their residence, except where otherwise specially provided; all to the effect that these statutes merely regulate the venue, and confer a personal privilege, which may be waived. It would unduly prolong this opinion to cite or review such cases, but it suffices to say that these holdings were made as to statutes just as peremptory in the language employed as the statute under consideration. Under the settled rule of decision in this state, we see no escape from the conclusion that the Legislature did not intend, by the statute we are discussing, to limit the right to bring a suit to set aside an award of the Industrial Accident Board to the courts of the county in which the accident occurred, but that its purpose was to confer the privilege upon the defendant in the action to require the suit to be there brought, which might be waived. By the terms of the statute, it was undoubtedly also the privilege of the plaintiff to bring the suit in such county, but we have no doubt that the parties, by consent, may waive this privilege, and try the case in the county of the defendant's residence where the suit was brought, notwithstanding the facts show the injury occurred in another county. Our conclusion is strengthened by the section in pari materia with section 5. In section 5a, where the award is against the association, and it refuses to continue the weekly or monthly payments, the claimant may institute a suit either in the county where the accident occurred, or where one or more of the claimants reside at the time the suit is brought. Certainly this provision was not intended to deprive the courts of other counties of their constitutional Jurisdiction over the subjectmatter, or of the person, where the claimant should see fit to bring suit in one of such other counties, and the defendant does not claim the privilege of having the suit brought at the place provided by the statute. In other words, under this provision, if the claimant should see fit to sue the insurer at its domicile or place of residence, and the defendant consented to, or waived any objection to the venue, the courts would not be without jurisdiction to try the cause and render judgment binding on both parties. If this be true, we think it follows that it would likewise be the case under the preceding section, where the suit was to set aside the award of the board. No difference in principle is perceived between the two provisions of the statute; they both relating to a mere matter of venue.

It may be claimed that the decisions, construing statutes prescribing the place for the bringing of land suits, are not in point, because the Constitution specifically provides that the district court shall have original jurisdiction of all suits for the trial of title to land. This suggestion is answered by the fact that the Constitution also vests the district courts with jurisdiction of all suits where the matter in controversy amounts to $500, exclusive of interest. The latter provision is found in the same section of the Constitution as the other, and is of equal dignity with it. They are equally effective in fixing jurisdiction of the subject-matter, and are equally specific, according to the character of actions to which they relate. If there is any apparent difference, it consists only in that the standard for prescribing jurisdiction in the one instance is the particular character of action, and in the other the amount in controversy. This question was substantially passed upon by the Supreme Court in State v. Snyder, supra, to which point we have referred in the previous review of that holding, and it is not thought necessary to further discuss it.

Our statutes provide that when a plea of privilege is sustained, the cause shall not be dismissed, but the court shall order the venue to be changed to the court of the county having jurisdiction of the persons and the cause; and the views above indicated lead to a reversal of the case, and the cause will be remanded for further proceedings consistent with this opinion, with the right on the part of Mrs. Lowry, the appellee, to have the case tried in Brown county, where the appellant elected to bring it, being the county of her residence, or to have the cause transferred to Coke county, where the accident occurred. Her plea in abatement was seasonably filed, and raised the question of proper venue of the suit, which could not have been presented by exception, because of the averments of the petition; and in substance preserved her right to have the cause transferred to the proper county, in case she desires to insist upon that privilege.

Reversed and remanded.