Davies v. Texas Employers' Ins. Ass'n

• Court: Texas Supreme Court
• Writing for the Court: Speer
• Citation: Davies v. Texas Employers' Ins. Ass'n, 16 S.W.2d 524 (Tex. 1929)
• Decision Date: 01 May 1929
• Docket Number: (No. 1046-5244.)
• Parties: DAVIES v. TEXAS EMPLOYERS' INS. ASS'N.

16 S.W.2d 524

DAVIES v. TEXAS EMPLOYERS' INS. ASS'N.

(No. 1046-5244.)

Commission of Appeals of Texas, Section B.

May 1, 1929.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by the Texas Employers' Insurance Association against Walter Davies, to set aside an award of the Industrial Accident Board, in which there was a cross-action by defendant. On plaintiff's appeal the judgment was reversed and remanded , and defendant brings error. Judgment of Court of Civil Appeals reversed, and that of District Court affirmed.

Vickers & Campbell and W. F. Schenck, all of Lubbock, for plaintiff in error.

Roscoe Wilson, of Lubbock, and Leachman & Gardere and S. P. Sadler, all of Dallas, for defendant in error.

SPEER, J.

This is a workmen's compensation case, in which the claimant recovered judgment in the district court, to which the association had duly removed the cause, and which judgment was reversed and the cause remanded by the Court of Civil Appeals, because of its holding that the claimant's petition was subject to a general demurrer. 6 S. W.(2d) 792.

In the district court the claimant neither alleged the giving of the notice, or the filing of his claim, within the time required by the statute, nor did he allege that such prerequisites were waived by the board. The Court of Civil Appeals held this omission to be fatal to the petition. The ruling has some support in the decisions of the Courts of Civil Appeals. Texas Employers' Ins. Ass'n v. Schoeppel (Tex. Civ. App.) 10 S.W.(2d) 405. The case cited, however, follows the instant case.

But we do not need to decide whether the requirements of the statute as to notice and filing claim by the employee are jurisdictional, constituting an essential part of the workman's case, or are merely statutes of limitations, to be pleaded in defense. Assuming for the purposes of this decision that they are jurisdictional, the case does not fail because of allegations contained in the association's petition.

In its petition to "set aside" the award of the Industrial Accident Board, it is shown that such board had "entered its final ruling and decision" in the matter for an inquiry sustained by the employee and "set forth in said final ruling and decision."

The association then pleaded "that the said W. Davies claimed compensation" before said Industrial Accident Board, and otherwise showed the jurisdiction of the district court with respect to its notice and timely filing of suit. The allegation that Davies claimed compensation before said Industrial Accident Board is broad enough as against a general demurrer, if contained in the employee's petition, to show compliance with the statute with respect to notice and filing of claim. Upon a general demurrer, the allegations of the adversary party may be looked to in aid of the pleading attacked. The allegation that Davies claimed compensation before the board by reasonable intendment means that he claimed compensation in a lawful manner; that is, in the manner required by statute. This could only be after notice, and upon claim duly presented to the board within the statutory time, or for good cause a waiver by the board of those requirements.

Upon the trial the defendant offered in evidence the claim for compensation for injury addressed to Industrial Accident Board, Austin, Texas, as follows:

"This is to notify you, Jas. T. Taylor, that I claim compensation from you under the Employers' Liability Act for personal injury sustained while in the employ of Jas. T. Taylor at Lubbock, Tex. The time of my injury was 8:15 o'clock a. m. on the 5th day of March, 1925. The place of injury was Textile Building. The cause of my injury was while climbing a column one brace gave way, causing employee to fall about 14 feet (breaking all bones in left ankle). The nature of my injury is as follows: Broken leg just about ankle on left leg; bones splintered. Are you a citizen of the United States? Yes. My wages on date of injury were $1.00 per hr. — 8 hr. day. I was employed 6 days per week.

           "[Signed] Walter Davies
                             "1118 8th St., P. O. Box 2021
                                        "Lubbock, Tex
                "Witness
                    "[Signed] H. F. King
                              "Industrial Accident Board
                              "Received Mar 26, 1925
                

"Length of time employed in same employment previous to...