Sullivan v. Maryland Cas. Co, 208 F.2d 161 (5th Cir. 1954)

The suit was under the Texas Workmen's Compensation Act. Vernon's Ann. Civ.St.Tex. art. 8306 et seq. The claim was: that within the scope and coverage of the act, appellant had suffered two injuries, one in March of 1952 and another on June 3, 1952; that he had given notice and filed claim as provided by law; that the Industrial Accident Board had rendered a final award; and that plaintiff had given timely notice of dissatisfaction with the award and had timely filed suit to recover the compensation to which he was entitled.

In response to plaintiff's petition, the defendant filed a plea of lack of jurisdiction and to abate the suit. This plea alleged in substance: that plaintiff had filed two claims with the board, each being docketed under a separate number, No. L-35381 and No. L-34023; and that the board had not rendered a final award in claim No. L-34023. On the basis of the facts so set out, defendant, calling attention to plaintiff's pleading which, though mentioning two accidents, had brought a single suit on both, prayed that the whole suit be dismissed, or, in the alternative, that the court take no jurisdiction of plaintiff's cause in reference to Industrial Accident Board docket No. L-34023.

On the hearing of the plea, it appearing that the proof fully supported it, and counsel for plaintiff admitting that the court was without jurisdiction unless the board had made a final decision, there followed a colloquy¹  between the court and plaintiff's counsel, after and as a result of which an order of dismissal, on defendant's plea to the jurisdiction and abatement, was entered, and this appeal followed.

Here, while not admitting that the court should have dismissed any part of its claim or suit, appellant's main contention is that certainly it should not have dismissed the suit as to both claims but only as to claim No. L-34023.

Appellee, on its part, urges upon us that since, as appears from the colloquy set out in note 1, supra, the appellant, plaintiff below, did not take corrective steps, by amendment of his petition or otherwise, to eliminate from his suit the claim on which the board had not yet acted, the court properly dismissed the whole cause.

We cannot agree. While we think it would have been better procedure if the plaintiff had taken the proper corrective action by amendment dismissing without prejudice as to claim No. L-34023, his failure so to do furnished ground not for dismissing the action as to both claims in suit but only for its dismissal as to the one claim, No. L-34023, as to which the board had not finally acted.

The judgment is reversed and the cause is remanded for further and not inconsistent proceedings.