Federal Underwriters Exchange v. Read, 2393-7783.

• Decision Date: 04 February 1942
• Docket Number: No. 2393-7783.,2393-7783.
• Citation: 158 S.W.2d 767
• Parties: FEDERAL UNDERWRITERS EXCHANGE v. READ.
• Court: Texas Supreme Court

Page 767

158 S.W.2d 767

FEDERAL UNDERWRITERS EXCHANGE v. READ.

No. 2393-7783.

Commission of Appeals of Texas, Section A.

February 4, 1942.

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

Suit under the Workmen's Compensation Act by Richard Read against Federal Underwriters Exchange to set aside award of the Industrial Accident Board granting plaintiff insufficient compensation. A judgment for the plaintiff was affirmed by the Court of Civil Appeals, 142 S.W.2d 440, and defendant brings error.

Reversed and remanded.

Battaile & Burr and J. H. Burr, all of Houston, for plaintiff in error.

A. A. Turner and W. C. McClain, both of Conroe, and Glenn Faver, of Jasper, for appellee.

HICKMAN, Commissioner.

In the trial court Richard Read, the employee, recovered judgment against Federal Underwriters Exchange, the insurer, for compensation under our Workmen's Compensation Law, Articles 8306 et seq., and that judgment was affirmed by the Court of Civil Appeals. 142 S.W.2d 440.

By its first group of assignments, the insurer calls into question the action of the trial court in permitting the employee to have the case reinstated on the docket of that court after he had voluntarily discontinued same in vacation and paid up all court costs accrued therein. It is made to appear by the record that the Industrial Accident Board made its award on June 12, 1939. The employee was not willing to abide by the ruling of the Board, and on or about June 30th thereafter mailed notice of that fact to the Board. On July 1st he instituted a suit in the proper court to set aside the award and to recover compensation. Thereafter he received notice from the Board that his notice of intention to appeal from its award had been received and filed on July 3, 1939. Concluding that his notice was filed too late, he, on July 6th, in vacation, paid all costs that had accrued and caused entry of discontinuance to be made on the docket of the trial judge, no answer having been filed by the insurer. The insurer gave notice of its dissatisfaction with the award but did not file any suit. On August 16, 1939, the employee filed suit to mature the award made by the Board as provided in Article 8307, Section 5a. Shortly thereafter he learned that his notice of dissatisfaction with the award had been received by the Industrial Accident Board in time to give the court jurisdiction of his original suit; whereupon he filed in the same court a motion to reinstate the original cause. That motion was granted and the case tried on its merits, resulting in a judgment in favor of the employee as noted above.

Under the provisions of Article 8307, Sec. 5, the employee's time for filing notice that he would not abide by the ruling and decision of the Board expired on July 2, 1939, twenty days after the award was made. It is stipulated that July 2, 1939, fell on Sunday. When the employee received notice from the Board that his notice had been received and filed on July 3rd, he concluded that same was filed too late to confer jurisdiction upon the court. By an Act of the 45th Legislature, at its 2nd Called Session, Chapter 19, Sec. 1, there was added to Article 8307 a section brought forward in Vernon's Statutes as Section 5b, providing that "in computing the twenty (20) days for the filing with the Board notices of unwillingness to abide by the final ruling and decision of the Board * * * if the last day is a legal holiday or is Sunday, then, and in such case, such last day shall not be counted, and the time shall be and the same is hereby extended so as to include the next succeeding business day." That amendment to the statute was effective at the time the employee's notice was filed with the Board, but his attorney did not know that same was in existence, and that is the only reason why he caused the notice of discontinuance to be entered on the docket and the costs to be paid.

Based upon the foregoing facts, the insurer urges, (1) that the court was without jurisdiction to reinstate the case; (2) that if it had jurisdiction, same could be invoked on equitable grounds only, which grounds were neither pleaded nor proved by the employee; and (3) if the motion to reinstate and the proceedings had thereon were sufficient to constitute the commencement of a new suit, same were insufficient to give the court jurisdiction because they were begun more than twenty days after July 3rd, the date the employee filed his notice of appeal with the Board.

These conclusions will not be questioned: (1) Under the amended statute above referred to, the notice of appeal was filed in time, and by the filing of the suit the trial court acquired jurisdiction of the suit for compensation. (2) Since jurisdiction of the case was acquired by the court, an action to mature the award did not lie. Article 8307, Sec. 5a; Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674; Texas Reciprocal Ins. Ass'n v. Leger, 128 Tex. 319, 97 S.W.2d 677. (3) If the motion to reinstate be treated as the commencement of a suit, the court acquired no jurisdiction of the case because such motion was filed more than twenty days after the employee gave notice of appeal. (4) If the court was without jurisdiction to grant his motion to reinstate, then the employee has no remedy and has suffered the loss of his claim entirely.

Article 2089, R.S.1925 provides: "The plaintiff may enter a discontinuance on the docket in vacation, in any suit wherein the defendant has not answered, on the payment of all costs that have accrued thereon." The insurer contends that the order of dismissal having been entered before an answer was filed, the court had no authority under that article to reinstate the case upon the motion of the employee. Two cases by courts of civil appeals are cited in support of the contention....