Indemnity Ins. Co. v. Jago , 12 S.W.2d 817 ( 1928 )

I concur with my Brethren in all their conclusions reversing and remanding this case, except in their construction of article 8307, R.S. 1925, to the effect that appellee's husband was not a necessary party to appellant's action to set aside the award made by the Industrial Accident Board. This article, a part of our Workmen's Compensation Act, among other provisions regulates the giving of notice and the filing of suit to set aside an award of the Industrial Accident Board. It provides that the complaining party "shall within twenty days after giving such notice bring suit * * * to set aside said final ruling and" decree. The Workmen's Compensation Act does not define the term "suit," nor what must be done to "bring suit" within the meaning of this act. Where this act contains no provision expressly or by necessary implication covering a question or defining a term, we must look to the general principles of the law in this state governing such principles. Maryland Casualty Co. v. Baker (Tex.Civ.App.) 277 S.W. 204. So the terms "suit" and to "bring suit," I think, should be given the construction recognized in our civil procedure. Article 1985, R.S., provides: "The husband shall be joined in suits for separate debts and demands against the wife, but no personal judgment shall be rendered against the husband."

Appellant asserts that this article cannot apply, since its right to have the award set aside was not a "demand" within the provisions of this article. Defining the word "demand," 18 C.J. 479, says: "The word is a term of art of an extent greater in its significance than any other word except `claim,' including everything which may be demanded by suit." Since it is expressly provided by article 8307 that the right to set aside an award can be enforced only by suit, I think appellant's right against Mrs. Jago to set aside the award was a "demand" within the meaning of article 1985. Under this article, where the plaintiff's petition discloses on its face the coverture of the wife, it states no cause of action against her, unless the husband is made a party. There are certain exceptions to this proposition, but the exceptions are not in point. Where the coverture is disclosed, it is not necessary for the wife to raise the issue by a special plea, and a judgment against her on such a petition is a nullity. Taylor v. Hustead (Tex.Com.App.) 257 S.W. 232; Borchers v. Fly, 114 Tex. 79, 262 S.W. 735; Gamel v. Bank (Tex.Com.App.) 258 S.W. 1043; Strickland v. Pilgrim (Tex.Civ.App.) 300 S.W. 215. As we construe the article under discussion, appellant's petition against Mrs. Jago, disclosing on its face that she was a married woman living with her husband, who was supporting her, was not in compliance with the provisions of article 8307, requiring the institution of a "suit" to set aside the award that had been made in her favor, and had no effect upon that award. It was as if no suit had been filed.

In any event, I agree with my Brethren in the disposition they have made of the issue of attorney's fees and damages and maturing the award, but not in the disposition they have made of the case. Believing that the award of the Industrial Accident Board was not suspended by the suit, it is my conclusion that it is still in full force and effect and that appellant is liable thereon to Mrs. Jago for all the relief granted her by its terms. She specially pleaded the award and asked for judgment and execution thereon. Her plea setting up the award and its terms was sufficient for the relief prayed for. Where an award has been made and for any reason it has become final, suit may be brought upon the award itself without inquiry by the claimant into the facts upon which the award was based, and that was the case made by appellee in the lower court. Vestal v. Texas Employers' Insurance Association (Tex.Com.App.) 285 S.W. 104k; Minor v. Lumbermen's Guaranty Accident Co. (Tex.Com.App.) 280 S.W. 163. Under the rulings of the court sustaining the demurrers against appellant's petition, appellee's demand was simply a suit upon the award of the Industrial Accident Board. It is my conclusion that the judgment of the trial court maturing the award and assessing damages and attorney's fees should be reversed, and that judgment on these issues should be here rendered in favor of appellant, but that judgment should be rendered here in favor of appellee Mrs. Jago that she have the relief granted to her by the original award of the Industrial Accident Board and her execution for the compensation as it matures.