Daniels v. Southern Surety Co.
| Citation | 40 S.W.2d 209 |
| Decision Date | 28 April 1931 |
| Docket Number | No. 9544.,9544. |
| Parties | DANIELS et al. v. SOUTHERN SURETY CO. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Harris County; Ben. F. Wilson, Judge.
Suit by the Southern Surety Company against Mamie Daniels and others to set aside an award of the Industrial Accident Board. Judgment for plaintiff, and defendants appeal.
Reversed and remanded.
Snell & Aynesworth, of Houston, for appellants.
King, Battaile & Dutton, of Houston, for appellee.
On the 2d day of June, 1927, the Owen Service Station was engaged in the business of an ordinary filling station, handling automobile tires, tubes, and other accessories, and selling gasoline and lubricating oil to those operating automobiles, motorbusses, and trucks, and in performing such other labors as are incident to the business generally known as a filling station. It also operated an ice house where it dispensed ice in small quantities.
On said date Owen Service Station was a subscriber, as that term is used and understood in the Texas Workmen's Compensation Act (Rev. St. 1925, art. 8306 et seq., as amended), and held a policy issued to it under the provision of said act by the Southern Surety Company.
While said policy was in force and effect one Secex Daniels, an employee of the subscriber, while acting within the scope of his employment, received an injury on July 10, 1927, from the effects of which he died on the 14th day of October, 1927.
At the time Secex Daniels received his injuries his weekly wage was $20.19. He was under contract to work 7 days per week. The duties to be performed by him under his contract consisted of handling ice, changing tires and tubes, filling gasoline tanks, and other duties incident to the operation of a filling and service station. At the time he suffered his injury Secex Daniels was engaged in the changing of an automobile tire.
In due time Mamie Daniels, wife of the deceased, gave due notice of such injury and death as required by law, and in due time filed her claim for compensation with the Industrial Accident Board of Texas.
On the 27th day of April, 1928, after due notice was given to all parties, the Industrial Accident Board entered its order upon the claim of Mamie Daniels as follows: "It has been made to appear to the satisfaction of the Board that Mamie Daniels, surviving widow of Secex Daniels, deceased, at the time of said fatal injury and death of Secex Daniels was separated from and living apart from him; that said separation had continued for a longer period than three years immediately preceding the date of his said death and that said separation was due to abandonment of said deceased by the said Mamie Daniels, and said abandonment was without good cause on the part of said Mamie Daniels; and therefore the claim for compensation of said Mamie Daniels ought to be and the same is hereby denied and refused and so far as the claim of Mamie Daniels is concerned the said Southern Surety Company must be and is hereby in all things fully and finally acquitted and discharged from all liability on account of her said claim, and it is so ordered, adjudged and decreed by the said Board."
On the 17th day of May, 1928, within twenty days after the entry of the above-mentioned order, the Industrial Accident Board, after due notice to all parties, reviewed the award formerly made by it. It set aside its former order, reciting that upon a reconsideration of the evidence of record, together with that submitted upon the later hearing, it was of opinion and finds that mistake and error was committed in the award of April 27, 1928, in that it found that Mamie Daniels had deserted her husband, Secex Daniels, deceased, without good cause, for a period in excess of 3 years. Such recital in the later order is followed by the following recitals: "Whereas, it now appears that this is error, and therefore said award of April 27th, 1928, ought to be and the same is hereby cancelled, annulled, set aside and held to be of no binding force or effect, and the following order ought to be and the same is here and now made and entered as the order of said Board, and it is so ordered, adjudged and decreed by the Board, to-wit."
This is followed by awarding to the claimant, Mamie Daniels, $12.11 per week for 360 weeks, beginning on the 2d day of June, 1927, less the attorney's fees which she had contracted to pay to her attorney, John N. Snell.
Within 20 days after the last award was made, the Southern Surety Company gave due notice that it would not abide by such award, and within 20 days thereafter it filed its petition in the district court asking that the award be set aside.
The plaintiff made both orders of the Industrial Accident Board a part of its petition. It then alleged that the award made on the 17th day of May, 1928, is not supported by any evidence or facts sufficient to justify said award; that the Industrial Accident Board was without warrant in law or authority to make and enter any award subsequent to the entry of the award made by it on the 27th day of April, 1928.
Defendants, Mamie Daniels and her attorney, answered, setting up the facts stated in our preliminary statement, and other matters, which, if shown to be true, would entitle defendants to the award made, if the Board had authority to review its first award and make the last.
A jury was chosen to try the case, but the court, after he ascertained from the evidence that the deceased, at the time he was injured, was employed to work 7 days a week, and that he was at such time changing an automobile tire on Sunday, instructed the jury that, as it appeared from the uncontroverted "testimony" that the injury producing the death occurred on Sunday, and that the deceased was at such time employed under an illegal contract, the defendants were not entitled to a recovery against the plaintiff. The jury returned the verdict as directed, and judgment was thereupon rendered for the plaintiff. Defendants have appealed.
We shall first dispose of appellee's contention that neither the district court which tried this case, nor this court, had nor has jurisdiction to hear and determine the issues involved, in that the Industrial Accident Board of Texas had no jurisdiction to make the second award, because, should such contention be sustained, this appeal should be dismissed by this court for want of jurisdiction to hear and determine the issues presented.
As already stated, the Industrial Accident Board, on the 27th day of April, 1928, made an award in the matter against Mamie Daniels, denying her compensation from which no appeal was taken, and that on the 17th day of May, 1928, within less than 20 days after the making of the first award, the claim was reopened by the board and an award was then made in favor of the claimant. It is this last award the Southern Surety Company is seeking to have set aside.
By section 12d of article 8306, Revised Civil Statutes of 1925, it is provided that: ...
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