Gulf Cas. Co. v. Jones

• Decision Date: 19 April 1956
• Docket Number: No. 6874,6874
• Citation: 290 S.W.2d 334
• Parties: GULF CASUALTY COMPANY, Appellant, v. John T. JONES, Appellee.
• Court: Texas Court of Appeals

Page 334

290 S.W.2d 334

GULF CASUALTY COMPANY, Appellant, v. John T. JONES, Appellee.

No. 6874.

Court of Civil Appeals of Texas, Texarkana.

April 19, 1956.

Rehearing Denied May 10, 1956.

Brachfield, Wolfe & Williams, Henderson, Joseph H. Sperry, Houston, Texas, for appellant.

Gordon R. Wellborn, Rex Houston, Henderson, for appellee.

FANNING, Justice.

Gulf Casualty Company has appealed from a total permanent disability judgment rendered against it in favor of John T. Jones, appellee, in a workmen's compensation insurance case tried before a jury.

Appellant's first point is as follows:

'Where the claim for compensation was filed more than six months after the alleged injury and plaintiff did not allege or attempt to prove good cause before the Board for failure to file such claim, the Industrial Accident Board and the District Court had no jurisdiction to hear the claim or pass on its merits.'

The injury occurred July 21, 1953. The claim for compensation was dated November 12, 1954, and was received by the Industrial Accident Board on November 13, 1954, about 15 months after the injury. The claimant also filled out and filed with the Industrial Accident Board 'Employee's Statement' on the form which the Board sent him. This form statement contains a number of questions asked by the Board but in this form no question is asked with reference to the matter of 'good cause' for not filing the claim within six months after the injury. Claimant also filed a medical statement with the Board. Claimant submitted no specific evidence to the Board with reference to 'good cause.' The Board entered an order to the effect that claimant had not submitted evidence to the Board to establish 'good cause' for delay in filing his claim, holding that the Board was without jurisdiction thereof and dismissed appellee's claim. Appellee appealed to the District Court of Rusk County and in a de novo trial before a jury all issues were answered favorably to appellee and the trial court entered a judgment in favor of appellee awarding him compensation for total and permanent disability. The jury, among other findings, found upon sufficient evidence, that appellee's employer had actual notice of appellee's injury within 30 days after the injury, and also upon sufficient evidence answered all issues with respect to 'good cause' favorably to appellee. Appellant has not attacked these findings of the jury on 'actual notice' and 'good cause.'

In 45 Tex.Jur., sec. 282, pp. 779, 780, it is stated: 'The filing of a proper suit to set aside an award operates to bring all the parties and the entire controversy before the court for a trial de novo, the court being invested with power to determine every issue involved (whether presented to the board or not) * * *.' (Citing in support thereof the following authorities: Lumbermen's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402, affirming Tex.Civ.App., 226 S.W. 154; Georgia Casualty Co. v. Campbell, Tex.Civ.App., 266 S.W. 854, error dis.; Millers' Indemnity Underwriters v. Hughes, Tex.Civ.App., 256 S.W. 334; Texas Employers' Ins. Ass'n v. Peterson, Tex.Civ.App., 251 S.W. 572, error ref. (Interpolation and emphasis ours.)

The Supreme Court of Texas in the Behnken case, supra, 112 Tex. 103, 246 S.W. 72, 75, stated that 'the district court had jurisdiction to determine all issues between the parties regardless of whether defendants in error's right to lump sum compensation had been asserted before the board.'

In Millers' Indemnity Underwriters v. Hughes, Tex.Civ.App., supra, 256 S.W. 334, 336, it was stated:

'By its thirteenth proposition, appellant complains that it was fundamental error for the court to render judgment for claimants in a lump sum, when it was not affirmatively pleaded and proved that the question of a lump sum payment was first presented to and passed upon by the Industrial Accident Board. Under this proposition, appellant insists that in the trial of a suit in the district court, brought for the purpose of setting aside an award of the Industrial Accident Board, if a claimant fails to present the issue of a lump sum award to the Board, on appeal to the district court he is denied the right to inject that issue not raised before the Board * * *. The Supreme Court, in the Behnken case, 112 Tex. 103, 246 S.W. 72, affirmed the Galveston Court of Civil Appeals (226 S.W. 154), and held that 'The district court had jurisdiction to determine all issues between the parties regardless of whether' the 'right to lump sum compensation had been asserted before the Board.' So, the question of jurisdiction of the district court in such cases to determine all questions, regardless of whether they had been presented to the Board or not, is no longer an open one, and appellant's proposition must be overruled.' (Emphasis ours.)

In Georgia Casualty Co. v. Campbell, Tex.Civ.App., supra, 266 S.W. 854, 857, err. dis., it was stated:

'It is well settled that in such cases as this, where a party attacks the award of the Industrial Accident Board in a suit filed in court, there is a trial de novo, and that the trial court has jurisdiction to determine any issue arising in the case, including a lump sum settlement, notwithstanding such question had not been presented to the Industrial Accident Board. Lumbermen's Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. (72) 75, 28 A.L.R. 1402; Millers' Indemnity Underwriters v. Hughes, Tex.Civ.App., 256 S.W. (334) 336.' (Emphasis ours.)

In the case of Texas State Highway Dept. v. Fillmon, Tex.Civ.App., 236 S.W.2d 635, 636, affirmed by the Texas Supreme Court in 150 Tex. 460, 242 S.W.2d 172, 175, the facts showed that the Industrial Accident Board of Texas entered its order dismissing a claim because of alleged lack of jurisdiction because the claimant "failed to establish * * * that claim was filed within six months as provided by law or that good cause existed for delay in filing to the date it was filed." (The facts in the Fillmon case, supra, do not show whether or not any evidence of 'good cause' was tendered by claimant to the Board for its consideration-however, the facts do show that the Board found that the claimant failed to prove 'good cause' and dismissed the claim for alleged lack of jurisdiction.) In this case it was held that such order of dismissal was a 'final ruling' on appellee's claim and was appealable. The Court of Civil Appeals in its opinion in said case, among other things, stated: 'The trial in the District Court was de novo and that court had the power to determine every issue involved whether presented to or acted on by the Board or not.' (Emphasis ours.) The Supreme Court of Texas, which affirmed the judgment of the Court of Civil Appeals in said case, among other things in its opinion stated:

'petitioner next attacks the judgments of the trial court and the Court of Civil Appeals wherein it was held that the trial court had jurisdiction to pass on all questions of compensability, amount of compensation to be paid, and other issues going to the merits of respondent's claim. On September 27, 1949, the Industrial Accident Board issued and caused to be served a notice of hearing on this claim to be held in Austin, Texas, on November 1, 1949. The claim was set for a hearing on its merits. On November 17, 1949, the Board entered its final award dismissing the claim from the docket because of its finding that claimant had failed to establish by proof that her claim was filed within six months, or that good cause existed for delay in filing.

'Petitioner urges that on appeal the jurisdiction of the district court was limited to a determination of the issue of good cause. We cannot sustain this contention. All issues of fact, including the issue of good cause, were before the Board for determination. The effect of the final award in this case was to deny the claimant compensation. The district court, in the trial de novo, had jurisdiction to consider and determine all issues of fact presented by the pleadings and supported by the evidence.' (Emphasis ours.)

We overrule appellant's first point.

Appellant's second point reads as follows:

' The District Court did not have

'The District Court did not have because the claim filed with the Industrial Accident Board and the petition filed in the District Court are entirely different from the proof on the trial of this cause.'

In appellee's claim for compensation before the Industrial Accident Board he alleged:

'The place of injury was at the Gulf Oil Corporation Production Dept. warehouse in Laird Hill, Rusk County, Texas. Cause of injury using buffer machine at warehouse, slipped, with leg going out from under me, causing pain and injury to back and body * * * Ruptured disc in back, pulled muscles, ligaments and tendons in back; general injuries of a general nature to the body in general.'

In his pleading in the District Court appellee alleged:

'* * * that on or about the 21st day of July, 1953, he accidentally sustained serious and painful personal injuries while working for Gulf Oil Corporation, Production Division, in the course and scope of his employment in Rusk County, Texas; said injuries naturally resulting in total and permanent disability and incapacity; that at said time and on said occasion plaintiff was working as an oil field worker doing general oil field work, and while using a buffer machine at the warehouse he slipped, causing him to receive a sudden and unexpected blow to his body, doing damage to his body in the lower part of his back, shoulders and arms, causing a ruptured disc, etc.'

Appellee testified with reference to his injury as follows:

'Q. And did you work for them until July 21, 1953? A. Yes, sir.

'Q. What happened to you on July 21, 1953, John? A. I was mopping and washing the floors and my feet slipped out from under me and I fell right on the bottom end of my back.

'Q. What kind of floor were you mopping? A. It is, I...