Employers' Indemnity Corporation v. Felter

• Decision Date: 04 June 1924
• Docket Number: (No. 6765.)
• Citation: 264 S.W. 137
• Parties: EMPLOYERS' INDEMNITY CORPORATION v. FELTER et al.
• Court: Texas Court of Appeals

264 S.W. 137

EMPLOYERS' INDEMNITY CORPORATION v. FELTER et al.

(No. 6765.)

Court of Civil Appeals of Texas. Austin.

June 4, 1924.

Rehearing Denied July 2, 1924.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by the Employers' Indemnity Corporation against Mrs. George R. Felter and others. Judgment for defendants, and plaintiff appeals. Affirmed.

T. H. McGregor, A. L. Love, and E. C. Gaines, all of Austin, for appellant.

Dickens & Dickens and King & York, all of Austin, for appellees.

BAUGH, J.

In 1918 the city of Austin carried a workman's compensation insurance policy with the Employers' Indemnity Corporation. On October 7, 1918, George R. Felter, then employed by the city of Austin as a meter reader in the water and light department, received injuries in a collision with an automobile at or near the corner of Seventeenth street and Congress avenue, from which he died a few days later. On March 30, 1923, the Industrial Accident Board of Texas, under said compensation policy, awarded to Mrs. George R. Felter and her two minor children, John Vincent Felter and Georgia Ruth Felter, whose guardian she was, compensation at the rate of $15 per week for 360 weeks from and after October 7, 1918, with interest on each weekly payment as it accrued. This award also provided for deduction of a part thereof as attorney's fees. Appellant gave due notice of its unwillingness to abide by this award, and filed suit to set it aside.

As grounds for setting aside said award appellant, plaintiff below, alleged that in September, 1920, Mrs. Felter had sued Edgar Barkley and Jeffie Barkley for damages for the death of her husband, which suit she later prosecuted to final judgment, her cause of action being based upon the same injuries for which the compensation was awarded by the Industrial Accident Board; that at the time she filed said suit and at the time of final judgment therein Mrs. Felter knew of the compensation policy and of her right to proceed thereunder, but that she elected to sue the parties alleged to have been responsible for the collision for damages. Appellant also alleged that by reason of her delay in seeking compensation and in suing for damages first, which suit was not finally disposed of until April, 1922, Mrs. Felter has permitted limitation to run against appellant and in favor of the Barkleys, and has thus precluded appellant from suing them and reimbursing itself for such sums as it might be compelled to pay under said insurance policy.

In their answer appellees pleaded that both appellant and the city of Austin had immediate notice of Felter's death; that appellant failed to report the accident to the Industrial Accident Board as required by law; that Mrs. Felter knew nothing of the existence of said policy when she sued the Barkleys; that her first information thereof was obtained on the trial of said cause; that pursuing such information she thereafter discovered the existence of said policy, and that appellant was liable thereunder; that immediately after such discovery she filed her claim with the Industrial Accident Board; and that appellant had fraudulently concealed from her the existence of its policy with the city of Austin — all of which she alleged were good reasons for not filing her claim with the Board within six months of the date of her husband's death; that not knowing of appellant's liability, through no fault of hers, when she sued the Barkleys, such suit could not amount to an election by her nor preclude her from applying to the Industrial Accident Board for compensation.

The case was submitted to a jury on special issues, and they found as follows: That the average weekly wage of George R. Felter during the year preceding his death was $25.38; that he received the injuries resulting in his death in the course of his employment; that Mrs. Felter had no actual knowledge or notice at the time she filed her damage suit against the Barkleys that the city of Austin carried a workmen's compensation policy covering the employment in which her husband was engaged; and that she first had actual knowledge or notice of the existence of said policy in July or August, 1922.

Based upon these findings the court rendered judgment for Mrs. Felter and her two minor children against appellant for $15 per week for 360 weeks beginning October 7, 1918, with interest at 6 per cent. on each weekly payment from the date it became due; and set aside to her attorneys under her contract with them one-third of the amount recovered. From this judgment the insurance company has appealed.

Opinion.

Appellant brings this case before us for review under nine assignments of error upon which it bases six propositions of law. The first of these is that appellees, defendants below, failed to allege and prove that their claim was filed with the Industrial Accident Board within six months of the death of George R. Felter, and failed to show good cause for delay of more than six months after they allege they knew of said insurance; that after suit was filed the proceeding became a trial de novo with burden of proof on claimant, and the proceedings before the Industrial Accident Board became a jurisdictional question requiring appellees to plead same fully.

Section 4a, part 2, of the Employers' Liability Act, being article 5246 — 43, Vernon's 1918 Supp., reads as follows:

"Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this act shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty (30) days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of same; or, in case of death of the employee or in the event of his physical or mental incapacity within six (6) months after the death or the removal of such physical or mental incapacity. Provided that for good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the Board."

The courts do not have jurisdiction of claims under the Compensation Act (Vernon's Ann. Civ. St. Supp. 1918, § 5246 — 1 et seq.) except by appeal from the award made by the Industrial Accident Board, and the Board acquires jurisdiction of such claim only when the claimant complies with the statute above quoted. Had this suit been filed below by the claimants, undoubtedly they would have been required to allege more facts than they did in order to show jurisdiction. Western Indemnity Co. v. Teonnis (Tex. Civ. App.) 250 S. W. 1102. In the instant case, however, the insurance company was plaintiff. In paragraph 2 of its petition appellant does allege that "on the 30th day of March, 1923, the Industrial Accident Board having in some manner claimed or asserted jurisdiction in the premises, which this plaintiff alleges it did not have, made and entered what is termed its final ruling and decision in what is termed an award, etc."; but it sets out fully the style and number of said award and its terms, and alleges that "a certified copy of said award is filed in this court, among the papers of this case for jurisdictional purposes." In paragraph 3 of said petition plaintiff pleaded the following:

"This plaintiff is an interested party to said award, because, if the same is not set aside by this honorable court, it will be compelled to pay the same, and as such interested party this plaintiff within 20 days after said award was made and entered gave notice in writing by personal service to the Industrial Accident Board of the state of Texas, and to each and all of the above named defendants that it was not willing to and would not abide by said final ruling, decision and award of said Board and that it would within 20 days after the serving of said notices file suit in a court of competent jurisdiction in Travis county, Tex."

Only in the general language quoted does the appellant deny the jurisdiction of the Board over the claim. It does not specify on what grounds the Board had no jurisdiction, and seeks to have the award of the Board set aside on other than jurisdictional grounds. Though denying in a general way the jurisdiction of the Board over the claim, appellant recognized the award as such, gave notice of appeal therefrom, and seeks to nullify such award, not because of a want of jurisdiction on the part of the Board to make it, but on the ground of election of remedies by appellees. We think appellant's petition sufficiently pleaded the proceedings before the Board to make it unnecessary for appellees to further plead the same facts in their answer, except on the question of their delay for more than six months after Felter's death in giving the Board notice of their claim. On this point the appellees pleaded at length as hereinabove set out. The time when Mrs. Felter first learned of the existence of the policy became an issue in the case, and the jury found it to be "July or August, 1922." She testified without objection by appellant that thereafter "in the fall we filed the claim and had a hearing before the Board."

Appellant cites us to numerous cases in support of its contention, many of them being cited in the case of the Georgia Casualty Co. v. Ward (Tex. Civ. App.) 220 S. W. 380. The Ward Case, and Poe v. Continental Oil & Cotton Co. (Tex. Civ. App.) 211 S. W. 488, 231 S. W. 717, cited by appellant, arose prior to the amendment of 1917 (Vernon's Ann. Civ. St. Supp. 1918, § 5246 — 43). This amendment added to the law then in force the following:

"Provided that for good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board."

Prior to this amendment the duty of filing such claim within six months after the injury or death was...