Traders & General Ins. Co. v. Baker

• Citation: 111 S.W.2d 837
• Decision Date: 18 November 1937
• Docket Number: No. 3568.,3568.
• Parties: TRADERS & GENERAL INS. CO. v. BAKER.
• Court: Court of Appeals of Texas

111 S.W.2d 837

TRADERS & GENERAL INS. CO. v. BAKER.

No. 3568.

Court of Civil Appeals of Texas. El Paso.

November 18, 1937.

Rehearing Denied December 23, 1937.

Appeal from District (Special) Court, Gregg County; D. S. Meredith, Judge.

Suit under the Workmen's Compensation Act by D. L. Baker against the Traders & General Insurance Company to set aside an unsatisfactory award of the Industrial Accident Board in favor of plaintiff. Judgment granting relief, and defendant appeals.

Reformed and affirmed as reformed.

Robertson, Leachman, Payne, Gardere & Lancaster, of Dallas, and Lightfoot, Robertson, Saunders & Gano and Claude Williams, all of Fort Worth, for appellant.

Houston & Johnson, of Dallas, for appellee.

WALTHALL, Justice.

This is a suit brought by appellee, D. L. Baker, as plaintiff, to recover of appellant, Traders & General Insurance Company, compensation under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., for personal injuries alleged to have been sustained by him on the first day of February, 1934, while working in the course of his employment for the firm of Johnson & Burnham, a copartnership composed of J. H. Johnson, G. H. Burnham, and D. J. Johnson.

Upon the trial before a jury, submitted on special issues, a judgment was rendered, on the verdict, in favor of appellee for a lump sum of $6,328.12, from which this appeal is duly prosecuted.

Appellee filed this suit in the district court of Gregg county in which his injuries complained of are alleged to have occurred, on appeal from the award of the Industrial Accident Board.

Appellee alleged that the accident, from which his injuries resulted, occurred on February 1, 1934; that he filed his claim with the board on September 17, 1934; the board made its final ruling and decision on March 22, 1935; that within twenty days from the decision of the board he gave notice to the board that he was not satisfied with its ruling and would not abide thereby, and within twenty days of giving such notice he brought this suit.

Appellee alleged that his employer had actual knowledge of the accident resulting in his injury within thirty days from its occurrence; that his injury did not result in disability and become compensable until on or about the 1st day of May, 1934; and that he made claim for compensation within six months from the infliction of compensable injury, to wit, on or about September 17, 1934. Appellee alleged in the alternative that if he is mistaken in his conclusion that his claim was filed within six months from the date of compensable injury, and that his claim should have been filed within six months from the happening of the accident on February 1, 1934, appellee's cause is a meritorious one and he has good cause for failing to make claim within six months from said date and not filing same until on or before September 17, 1934, in that appellee in fact did not realize that he had sustained any disabling injury and considered his injury trivial until the contrary later developed, and in that, also, when his disability first became apparent he was of the opinion that it was due mainly to rheumatism, and would be temporary, and was treated for rheumatism by physicians and did not attribute the disability to the injury until immediately before filing his claim for compensation as above; and pleading further in the alternative appellee alleged that during a part of the intervening time he was physically and mentally incapacitated to give attention to the filing of any claim, in that he underwent an operation and was confined in the hospital, stating time.

Appellant answered by general denial, specially denied the issuance of a policy as alleged by appellee, denied that appellee had received any accidental injuries in the course of his employment, and alleged that appellee's claim for compensation was filed more than six months after the alleged injuries, and prayed that said award be set aside and held for naught.

The court overruled appellant's motion to instruct the verdict in its favor, and overruled appellant's motion for a new trial.

Opinion.

The award made by the Industrial Accident Board on appellee's claim is that appellant pay to appellee "$20.00 per week for an indefinite period in the future not exceeding 104 consecutive weeks from May 1st, 1934, for total incapacity."

Appellant submits that the order of the board in stating the award and directing its payment is not such a final ruling, decision, and award of the board as will authorize an appeal therefrom to the courts, in that it leaves the period of compensation undetermined and for an indefinite time, and any attempt to appeal therefrom would not have the effect to vest the court with jurisdiction; that the district court did not acquire jurisdiction by the appeal from said order; and that appellee's claim is still undetermined before the Board.

We are referred to article 8307, section 5, of the Revised Statutes, as amended, Vernon's Ann.Civ.St. art. 8307, § 5, and to a number of cases from the Courts of Civil Appeals, and the Commission of Appeals, as sustaining appellant's proposition. We have carefully reviewed the cases and think they are distinguishable from the case now before us. It would extend the opinion to too great length, and would serve no useful purpose, to review them here.

In Vestal v. Texas Employers' Ins. Ass'n, Tex.Com.App., 285 S.W. 1041, the writ of error was granted to review the case in which the award of the board was in favor of Vestal requiring the insurer "to pay to said Vestal the sum of $15 per week for a period not in excess of 401 weeks." The trial court found that the award was as final an award as the board was empowered to make under the statute. The Court of Civil Appeals held that the award was sufficiently final to predicate suit thereon. In the discussion of the case by Judge Speer for the Commission of Appeals, as we view it, while the sufficiency of the award to constitute a final award of the board and upon which to base an appeal to a court for a trial de novo was not specifically discussed, we understand that the Commission of Appeals regarded the award as a final decision of the board. The case was reversed on other grounds but not for want of finality in the award.

In Lumbermen's Reciprocal Ass'n v. Warren, Tex.Civ.App., 272 S.W. 826, 827, writ refused, the Industrial Accident Board, in refusing Warren a lump sum, and in granting him an award on his claim for total disability, found that Warren suffered total incapacity from September 8, 1923, to the time of the hearing of his claim, and will continue to suffer total incapacity for an indefinite period in the future, and then said: "And he is therefore entitled to recover and be paid compensation herein at the rate of $10.38 per week, beginning on September 16, 1923, and continuing thereafter down to and including this date, and to continue for an indefinite period in the future and until and unless altered, changed, modified, or terminated by subsequent agreement between the parties, in accordance with the terms and provisions of the employer's liability act, and subject to the approval of the Industrial Accident Board, or until and unless altered, changed, modified, or terminated by subsequent order, award, judgment, or decree of the Industrial Accident Board, but in no event to continue for a longer period than 401 weeks from and after September 8, 1923."

Appellant contended, as in this case, that the order was not final. The...