Georgia Casualty Co. v. Ward, (No. 2241.)

• Decision Date: 11 March 1920
• Docket Number: (No. 2241.)
• Citation: 220 S.W. 380
• Parties: GEORGIA CASUALTY CO. v. WARD et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 380

220 S.W. 380

GEORGIA CASUALTY CO. v. WARD et al.^*

(No. 2241.)

Court of Civil Appeals of Texas. Texarkana.

March 11, 1920.

On Motion for Rehearing, April 22, 1920.

Appeal from District Court, Hunt County; A. P. Dononey, Judge.

Action by Jessie Ward and others against the Georgia Casualty Company and others. Judgment for certain of the plaintiffs, and the named defendant appeals. Reversed and dismissed.

In June, 1916, the Farmers' Cotton Oil Company, then operating a manufacturing plant at Wichita Falls, was a "subscriber" and appellant was "the association," within the meaning of the Employers' Liability Act, approved April 16, 1913. General Laws, c. 179 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5246h et seq.). On the 2d day of that month W. S. Ward, then an employé of said oil company, was injured in the course of his employment by being struck on the head by a wrench thrown by machinery in the oil company's plant. One Dea, said oil company's superintendent, was present at the time the accident occurred, and afterwards, but on the same day, caused a notice thereof to be sent to appellant and to the Industrial Accident Board created by said act. Ward did not present a claim for compensation as provided by the act until March 13, 1918. On that day he made such a claim on appellant, and at the same time forwarded a copy thereof to said board. There is nothing in the record showing action of any kind by the board on the claim. This suit was commenced by Ward April 2, 1918. He died April 15, 1918. By an amended petition filed April 17, 1918, his mother and his widow, for herself and as next friend for her minor child, became plaintiffs. They alleged that the injury Ward suffered June 2, 1916, as hereinbefore stated, was the cause of his death. The trial was to the court without a jury, and resulted in a judgment in favor of said widow and minor child against appellant for $1,330, and that the mother take nothing by the suit. The appeal was by the casualty company alone.

Frank S. Anderson, of Galveston, for appellant.

B. Q. Evans, of Greenville, for appellees.

WILLSON, C. J. (after stating the facts as above).

Part of section 4a, pt. 2, of the Employers' Liability Act approved April 16, 1913 (General Laws, pp. 429 to 438 [Vernon's Sayles' Ann. Civ. St. 1914, art. 5246ppp]), was as follows:

"No proceedings for compensation for injury under this act, shall be maintained * * * unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employé, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity."

It is insisted that making claim for compensation for an injury within the time specified in the part of the act just set out was a prerequisite to the existence in an employé of a right to an award thereunder; and that, because appellees did not specifically allege in their petition that claim for compensation for the injury to Ward was so made, the trial court erred when he overruled the demurrer to said petition on the ground that it did not appear from the allegations therein that appellees had a cause of action against appellant. It will be noted that by the terms of the act, "in case of the death of the employé" it was sufficient if the claim for compensation was made within six months thereafter. It was alleged in the amended petition filed by appellees April 17, 1918, that Ward died April 15, 1918. The filing of that petition was a claim by appellees for compensation provided for in the act, and, as it was filed within six months after Ward died, we see no reason why the trial court should have sustained the demurrer. Ackerson v. National Zinc Co., 96 Kan. 781, 153 Pac. 530. It is next insisted that if it sufficiently appeared from the allegations in the petition that appellees were entitled to compensation provided for in the act, the right to hear and determine the matter in the first instance was in the Industrial Accident Board alone, and that the court below therefore was without power to hear and determine it as he did. The argument is that by the terms of the act, properly construed, "no suit," quoting from appellants' brief —

"can be brought upon a disputed claim until it has first been adjudicated by the Industrial Accident Board, and in the event the decision is not accepted suit may be brought upon the claim in the nature of an appeal from the findings of the board."

This court held to the contrary of the contention in the (to the writer) satisfactory opinions by Justice Levy in Fidelity & Casualty Co. v. House, 191 S. W. 155, and Roach v. Employers' Ins. Ass'n, 195 S. W. 328. As we view the matter, the conclusion reached in those cases was a sound one. Other objections to the judgment are set out in the assignments, but we think none of them presents a reason why it should be reversed. Therefore it is affirmed.

On Motion for Rehearing.

The language of the part of section 4a of the act of April 16, 1913, set out in the opinion affirming the judgment, is emphatic that "no proceeding for compensation" under it should be maintained unless claim for the compensation was made as it provided; that is, within six months after the employé suffered the injury, or, in case of his death, within six months thereafter. Similar provisions in like statutes in other jurisdictions have been construed to be mandatory and a compliance with...