Middlebrook v. Texas Indemnity Ins. Co.

• Decision Date: 18 December 1937
• Docket Number: No. 12558.,12558.
• Citation: 112 S.W.2d 311
• Parties: MIDDLEBROOK v. TEXAS INDEMNITY INS. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

112 S.W.2d 311

MIDDLEBROOK v. TEXAS INDEMNITY INS. CO.^*

No. 12558.

Court of Civil Appeals of Texas. Dallas.

December 18, 1937.

Rehearing Denied January 22, 1938.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Suit by J. J. Middlebrook against the Texas Indemnity Insurance Company to mature an award of the Industrial Accident Board. From a judgment for defendant, plaintiff appeals.

Reversed and remanded with instructions.

Hoyet A. Armstrong, of Dallas, for appellant.

Wm. Roy Anderson, of Cleburne, for appellee.

YOUNG, Justice.

Appellant filed suit in the district court of Hunt county November 25, 1936, against appellee, wherein he sought to mature an award made by the Industrial Accident Board of Texas on October 21, 1936. Appellant alleged in such suit the following as to the terms of such award: "On said date J. J. Middlebrook suffered injury in course of employment, resulting in his total incapacity for performance of labor for an indefinite period in the future not exceeding 125 weeks, Texas Indemnity Insurance Company is ordered to pay J. J. Middlebrook $9.00 per week for an indefinite period in the future not exceeding 125 consecutive weeks from December 19th, 1935, unless changed by subsequent award of the Board."

The only question for this court is whether or not the award sued on above by appellant is such a final award as will support a judgment in a suit to mature the same. We have carefully read the briefs presented by both parties and the authorities cited therein; and, in addition, have conducted an extended collateral research in an effort to reach a correct answer to this question. We are somewhat distressed over the confusion existing among various Courts of Civil Appeals, as well as in the Supreme Court, over the problem at hand; as the case of Vestal v. Texas Employers' Ins. Ass'n, Tex.Com.App., 285 S.W. 1041, 1046, seems to be directly in support of appellant's position, and the effect of Southern Surety Co. et al. v. Arter, Tex.Com. App., 44 S.W.2d 913, is to uphold the contention of appellee.

There is an old adage, to the effect that, "If two opinions split the way, then hear what conscience has to say."

Doubtless, the conscience of the chancellor is involved under our blended system of law and equity, as we are here merely subjecting the pertinent sections of the Workmen's Compensation Law to a fair and reasonable analysis, in view of the question before us. Section 5a of article 8307, R.S. reads:

"In all cases where the board shall make a final order, ruling or decision as provided in the preceding section and against the association, and the association shall fail and refuse to obey or comply with the same and shall fail or refuse to bring suit to set the same aside as in said section is provided, then in that event, the claimant in addition to the rights and remedies given him and the board in said section may bring suit where the injury occurred, upon said order, ruling or decision. If he secures a judgment sustaining such order, ruling or decision in whole or in part, he shall also be entitled to recover the further sum of twelve per cent as damages upon the amount of compensation so recovered in said judgment, together with a reasonable attorney's fee for the prosecution and collection of such claim.

"Where the board has made an award against an association requiring the payment to an injured employé or his beneficiaries of any weekly or monthly payments, under the terms of this law, and such association should thereafter fail or refuse, without justifiable cause, to continue to make said payments promptly as they mature, then the said injured employé or his beneficiaries, in case of his death, shall have the right to mature the entire claim and to institute suit thereon to collect the full amount thereof, together with twelve per cent penalties and attorney's fees, as herein provided for. Suit may be brought under the provisions of this section, 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."

We have been furnished, as a part of this record, a copy of the award in the Vestal Case, supra, and we quote therefrom the board's finding in material part:

"The Board further finds that, in consequence of said injury, the said B. A. Vestal suffered total incapacity in the performance of labor from October 14th, 1922 down to this date and will continue to suffer said total incapacity for an indefinite period in the future and he is, therefore, entitled to recover and be paid compensation herein at the maximum rate of $15.00 per week, beginning October 22, 1922 and continuing thereafter down to and including this date, and to continue in the future until or unless altered, changed, modified and terminated by subsequent agreement between the parties in accordance with the terms and provisions of the Employers Liability Act, subject to the approval of the Industrial Accident Board, or until or 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 October 14th, 1922."

The Commission of Appeals in this (Vestal) case, through Judge Speer, after discussing the meaning and effect of section 5a above, says:

"The award in this case of $15 per week not to exceed 401 weeks is a final and definite award, and in legal contemplation means $15 a week for the full term of 401 weeks, subject only to the statutory power of the board to modify the same in the manner provided in article 5246 — 25, and, until such modification has been made by the board, at a time when it had jurisdiction over the claim, the award remains a valid and final decision, subject to enforcement in the manner provided by the act, and in the nature of things, when the court having jurisdiction, for cause, sustains an award and visits the statutory penalties, directing execution for enforcement, its judgment is final, as judgments generally are conclusive."

We conclude that the above holding is determinative of the question before us. We must bear in mind that all of the provisions of the Workmen's Compensation Law should receive a liberal construction by the courts, to effectuate their beneficial purpose. Mingus, Rec'r, v. Wadley, 115 Tex. 551, 285 S.W. 1084; Vestal v. Texas Emp. Ins. Ass'n, Tex.Com.App., 285 S.W. 1041.

The second paragraph of section 5a simply refers to an award made against an association. Of course, a final order, ruling, or decision of the board is intended, yet the statute nowhere requires in its terms a definite state of incapacity for any specific period. The particular nature of the injury to appellant here is not shown. There are many species of incapacity which are susceptible, under the statute, of precise accuracy as to the period over which stated compensation may be allowed. For the loss of a hand or an eye or a leg, the statute provides the monetary damage with exactness. Other kinds of incapacity are not capable of measurement with so certain a legal yardstick, and the board can only determine from the facts at hand, at the time of the award, that such disablement will continue in the future for no longer than the specified time, always subject to section 12d of article 8306, R.S., amended by Acts 1931, c. 155, § 1, Vernon's Ann. Civ.St. art. 8306, § 12d, of "changed conditions," etc, whereupon, such award can be amended. In this case, appellee was bound to continue the $9 payments for the entire period, unless modified as above stated, under section 12d, or on appeal therefrom. Upon lapse of the time in which to appeal, and upon failure to make the recited weekly payments, suit to mature the award for its maximum period is available to the claimant, absent proof of justifiable cause. From the pleadings, appellee voluntarily failed to perform its liability of weekly payments under the award, and upon appellant taking steps to perfect the only effectual remedy open to him, appellee attempted to justify its refusal or failure by asserting the indefinite nature of the judgment or award to which it was a party. No such advantage, we think, can accrue to a party from his own breach of obligation; and, in measuring the damage to the aggrieved party, we conclude that the terms of such award or judgment should be construed favorably to the nonoffending party, to the end that his rights thereunder may be effectually fixed. Otherwise, the insurance carrier, as a party to a so-called "running award," would enure to an advantage not contemplated in the liberal construction of the Compensation Law, and the claimant would be precluded from obtaining full relief until expiration of the compensation period.

Appellee submits that the claimant's remedy here was to go back to the board, and make application for such a...