Casparis v. Fidelity Union Casualty Co.

• Decision Date: 11 October 1933
• Docket Number: No. 7853.,7853.
• Citation: 65 S.W.2d 404
• Parties: CASPARIS v. FIDELITY UNION CASUALTY CO.
• Court: Texas Court of Appeals

Page 404

65 S.W.2d 404

CASPARIS v. FIDELITY UNION CASUALTY CO.

No. 7853.

Court of Civil Appeals of Texas. Austin.

October 11, 1933.

Rehearing Denied November 1, 1933.

Appeal from District Court, Blanco County; Carl Runge, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Jessie Casparis against the Fidelity Union Casualty Company to set aside an order of the Industrial Accident Board denying compensation. From the order of the district court denying compensation, plaintiff appeals.

Affirmed.

T. H. McGregor and Cofer & Cofer, all of Austin, for appellant.

Houston & Johnson, of Dallas, for appellee.

McCLENDON, Chief Justice.

This is a Workman's Compensation Law case. Appellant's husband was killed while in the employ of one insured by appellee under that law (Rev. St. 1925, arts. 8306-8309, as amended). The appeal is from a judgment non obstante veredicto denying recovery; the trial court holding that the evidence would not support a jury finding that the injuries resulting in Casparis' death arose in the course of his employment.

We have concluded that the trial court was without jurisdiction, and therefore the trial court's above holding becomes unimportant. The pertinent record facts follow:

Davis, Casparis' employer, and Casparis lived in Johnson City. Davis had a construction contract on a portion of state highway in Gillespie county, in connection with which he operated a camp for his laborers and teams. Casparis was employed as general roustabout. He used a truck, which he owned but for which Davis supplied the gas and oil, to go to and from his work between his home in Johnson City and the camp. It was a part of his duties on these trips to take groceries and other supplies to the camp, and to bring from the camp tools needing repair in Johnson City. On September 25, 1930, while he was on his way from the camp to his home his truck struck a soft shoulder and was wrecked; causing the injuries resulting in his death. Mrs. Casparis filed a claim for compensation with the Industrial Accident Board; and the latter, after a hearing entered an award on December 20, 1930, denying compensation, on the ground that Casparis was not at the time of the fatal accident engaged in the course of his employment. No appeal was taken from this award. On August 28, 1931, she filed with the board an application to review its award, predicating her right thereto upon the ground that she had subsequently learned from Davis "the real facts," that her husband "was in the regular course of his employment at the time of his death," and that she had been prevented from ascertaining the facts prior to the award by the fraudulent misrepresentations of appellee's agent. On September 18, 1931, the board refused to review its prior order, on the ground that it had lost all jurisdiction in the premises. The present suit is a regularly prosecuted appeal from that order.

On May 10, 1922, in Millers' Indemnity Underwriters v. Hayes, 240 S. W. 904 (an unadopted opinion of the Commission of Appeals), it was held that under section 12d of article 8306, R. C. S., the Industrial Accident Board had jurisdiction to review for mistake or fraud its orders denying as well as those awarding compensation. On June 25, 1930, in Cooper v. U. S. F. & G. Co., 29 S.W.(2d) 971, 973 (also an unadopted opinion of the commission), it was held that section 12d only applied where the board "has previously made an award allowing compensation," and "has no application whatever to cases in which the board has made an award refusing compensation." No reference, however, was made to the Hayes Case.

December 20, 1930 (two days after the award in this case), motion for rehearing was overruled in the Cooper Case, the commission handing down an unadopted opinion (33 S.W. (2d) 189, 190), from which we quote: "An examination of the opinion in the Hayes Case convinces us that our holding in the instant case is in conflict therewith; in fact, while the original opinion in this case was pending before the Supreme Court, and before they had adopted the judgment recommended therein, we had our attention called to the Hayes Case, and in turn, called the attention of the Supreme Court thereto. In this condition of the record we have consulted with the Supreme Court and they have informed us that they entered the judgment recommended by us in our original opinion in this case, with the opinion in the Hayes Case before them, and with the full realization at the time, that the holding in the instant case has the effect of overruling the Hayes Case. Also the Supreme Court have informed us that they are still of the opinion that the construction placed on section 12d of article 8306, supra, in our original opinion in this case is correct, and that the construction placed thereon in the Hayes Case is erroneous, and should be overruled. We therefore still adhere to the holding in our original opinion, and expressly overrule the holding in the Hayes Case."

It is the contention of appellant that since the relationship between the employee and insurance carrier is contractual [Patton v. Casualty Co. (Tex. Com. App.) 36 S.W.(2d) 1000], the remedy afforded by section 12d as construed in the Hayes Case became a vested contractual right which was protected by the state and Federal Constitutions [Const. Tex. art. 1, § 16; Const. U. S. art. 1, § 10], and could not be taken away by the subsequent overruling of the holding in the Hayes Case. We quote appellant's proposition of law in this regard: "Where a contract is entered into with reference to a certain statute and such statute has been construed by the Supreme Court—the highest court, such statute and the decision construing it enter into and become a part of the contract, and the contracting parties are entitled to the benefit of such statute as so construed, even though the Supreme Court in a subsequent decision has overruled its former decision."

Pretermitting in this connection any discussion of the authoritative effect of unadopted opinions of the commission, and of the question whether the change in remedy (if it had been statutory, and not by judicial decision) would come within the rule contended for, the quoted proposition of law is not sound, and we overrule it upon the authority of Storrie v. Cortes, 90 Tex. 283, 38 S. W. 154, 156, 35 L. R. A. 666. In an elaborate opinion by Judge Brown, in which the authorities, state and federal, are reviewed, including those cited by appellant, the court say: "In no case decided by the supreme court of the United States, nor, do we believe, in any case decided by any state court, has it ever been held that a decision which overruled a former decision of the same court was obnoxious to the provision of the constitution of the United States, or of the state, which prohibits a state from enacting any law that violates the obligation of a contract. On the contrary, in every instance where the question has come before the supreme court of the United States in the exercise of appellate jurisdiction...