Harris v. Texas Employers' Ins. Ass'n.

• Decision Date: 15 December 1923
• Docket Number: (No. 8905.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 257 S.W. 998
• Parties: HARRIS et al. v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Court of Appeals

257 S.W. 998

HARRIS et al. v. TEXAS EMPLOYERS' INS. ASS'N.

(No. 8905.)^*

Court of Civil Appeals of Texas. Dallas.

December 15, 1923.

Rehearing Denied January 26, 1924.

On Motion to Correct Findings of Fact February 2, 1924.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by the Texas Employers' Insurance Association against Bettie Harris and others, to set aside an award under the Workmen's Compensation Act. Judgment for plaintiff, and defendants appeal. Affirmed.

John White and W. A. Hudson, both of Dallas, for appellants.

Lawther, Pope & Leachman, of Dallas, for appellee.

VAUGHAN, J.

This appeal involves the application of the following provisions of Workmen's Compensation Act (Acts 1917, c. 103) § 5, pt. 2 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246 — 44), to wit:

"Any interested party who is not willing and does not consent to abide by the final ruling and decision of said board shall within twenty days after the rendition of said final ruling and decision by said board give notice to the adverse party and to the board that he will not abide by said final ruling and decision. And he shall within twenty days after giving such notice bring suit in some court of competent jurisdiction in the county where the injury occurred to set aside said final ruling and decision."

Appellants Bettie Harris, surviving widow of Robt. Harris, deceased, and Lucile Harris, Roscoe Copeland Harris, Leonard Harris, and Isadore Harris, surviving minor children of Robt. Harris, deceased, and John White, on the 7th day of July, 1921, filed their suit in the court below to recover 360 weeks' compensation and to enforce the award of the Industrial Accident Board of Texas rendered on the 17th day of June, 1921, at the rate of $11.54 per week with 12 per cent. penalties and reasonable attorney's fees, for the accidental death of the said Robt. Harris, deceased. Appellants alleged that the death of said Robt. Harris occurred by reason of accidental injuries to him while in the course of his employment as an employé of the Oriental Oil Company, and that appellee had not appealed from said award and had failed and refused to carry out the same as made in any respect; said suit being numbered 39401-B, styled "Bettie Harris et al. v. Texas Employers' Insurance Association."

To this suit appellee pleaded, in substance, as follows: (1) General denial; and (2) that it was not liable for the death of said Robt. Harris, and that the cause of his death grew out of a personal matter between said Harris and a third party, and that it did not grow out of the course of his employment and had no relation to the employment of said Robt. Harris.

Prior to the filing of petition in cause No. 39401-B, appellee, as plaintiff, filed its petition numbered 39323-B against appellants and said Industrial Accident Board as defendants therein, said cause being styled on the docket of the court below, "Texas Employers' Insurance Association v. Bettie Harris et al.," all of the appellants being party defendants thereto. Said suit was instituted by appellee to set aside the award of the Industrial Accident Board on the grounds hereinafter stated:

Appellants, as defendants in said cause No. 39323-B, answered by general demurrer, general denial, and filed special exceptions to notice of appeal, and also pleaded to the jurisdiction of the court and motion to quash said cause.

The trial court overruled appellants' motion filed in cause No. 39323-B to quash appellee's notice of appeal from the final decision and ruling of the Industrial Accident Board, and made the following ruling on the exceptions presented by appellee in said cause No. 39323-B to the original answer and cross-action of appellants filed in said cause, to wit: Special exceptions Nos. 1, 3, 4, 5, and 6 were sustained, and No. 2 overruled. Thereupon appellants, defendants in said cause No. 39323-B, abandoned all their pleadings theretofore filed in said cause No. 39323-B and entered their plea to the jurisdiction of the court in said cause No. 39323-B and a general denial, and included therewith, as plaintiffs in said cause No. 39401-B, their first amended original petition in lieu of their original petition. Whereupon, under leave granted, appellee amended its first supplemental petition in cause No. 39323-B and its answer in cause No. 39401-B.

Appellee, in reference to the service of notice of its decision not to abide by the award of the Industrial Accident Board, alleged that on the 23d day of June, 1921, it addressed to said Industrial Accident Board and to each of the appellants, and to their attorney, John White, Esq., the following notice:

                "110534.                          June 23, 1921
                

"Robt. Harris — Oriental Oil Co.

"This is to advise that the association is not willing and does not consent to abide by the final ruling and decision of the Industrial Accident Board made in this case under date of June 17th, 1921, and shall within twenty days bring suit in some court of competent jurisdiction in the county where the injury occurred to set aside said final ruling and decision. This notice is given in accordance with section 5, pt. 2, of amended Employers' Liability Act, and is sent out as registered mail."

A copy of the above notice was sent by mail to each one of the appellants as follows: Robt. Lee Harris, Isadore Harris, Leonard Harris, Roscoe Copeland Harris, Lucile Harris, and Bettie Harris. Each was addressed to 1700 Lincoln street, Dallas, Tex., and one copy to John White, attorney, North Texas Bldg., Dallas, Tex., and one copy to Industrial Accident Board, Austin, Tex., by registered mail, postage and registration fee prepaid, and requested return receipt on each envelope.

Appellee further alleged that, at the time of the killing of Robt. Harris, he, with his wife and children, lived at 1700 Lincoln street, Dallas, Tex., and that at the time of mailing said notices appellee had not been informed by the claimant, Bettie Harris, or her attorney, John White, Esq., that appellants had moved from 1700 Lincoln street or changed their address, and was not so informed until the 8th day of July, 1921, in consequence of which, notice dated June 23, 1921, was addressed and mailed to said appellants, respectively, as above stated; that on the 25th day of June, 1921, said notice was received by the Industrial Accident Board at Austin, Texas, but that the notice to John White and to appellants were thereafter returned to appellee by the United State postal department with each envelope stamped, "Return to Writer, Unclaimed, from Dallas, Texas;" that, on the date the notice addressed to said John White was returned, his office address was "North Texas Bldg., Dallas, Texas"; that upon the return of said notice unclaimed, and for the purpose of ascertaining the cause of the nondelivery of same, appellee, by personal messenger, sent said notices addressed to John White and appellants to the office of John White in the North Texas Bldg., before the expiration of 20 days from the date of the award of the Industrial Accident Board; that said messenger found the door to said office locked and the office closed, and was unable to ascertain when same would be open or when said notices could be delivered to said John White; that thereafter, to wit, on the 7th day of July, 1921, and before the expiration of the 20 days from the date of said award, appellee again sent a personal messenger to the office of said John White, North Texas Bldg., Dallas, Tex.; that said messenger found the office closed and the door shut; that said messenger visited said office more than once on said day and, for the reasons hereinbefore set out, was unable to see the said John White and deliver the said notices; that on the 8th day of July, 1921, appellee again sent a messenger to the office of John White and upon that day found him in and tendered him the notice above set out, but the said John White refused to receive same. However, at that time said White informed appellee's attorney that appellants had removed to Franklin, Tex., giving their address as route 4, box 4, Franklin, Tex., and thereupon appellee sent by registered mail, return receipt requested, said notice to each one of appellants, and that same were delivered to appellants, respectively, on the 13th day of July, 1921; that after said notice of unwillingness to abide by said final ruling and decision of the Industrial Accident Board had been delivered to said board on the 25th day of June, 1921, appellee, on the 29th day of June, 1921, filed its petition in the court below, same being No. 39323-B on the docket of said court, wherein it set out the fact of the final ruling and decision of the Industrial Accident Board of date June 17, 1921, in the matter of Robt. Harris, Deceased, Employé, v. Oriental Oil Company, Employer, and Texas Employers' Insurance Association, Insurer, in favor of the said Bettie Harris, surviving widow of Robt. Harris, deceased, Lucile, Robt. Lee, Isadore, Leonard, and Roscoe Copeland Harris, surviving minor children, for compensation at the rate of $11.54 per week for a period of 360 weeks, beginning on March 17, 1921, and set out its unwillingness — and prayed that said final ruling and decision of said Industrial Accident Board be set aside and held for naught; that the injury received by the said Robt. Harris on the 17th day of March, 1921, which resulted in his death, was not received by him in the course of his employment with the Oriental Oil Company, and did not arise out of and was not incident to said employment, but, on the contrary, said injury and consequent death was caused by the act of a third person intended to injure said Robt. Harris because of reasons personal to him and not directed against him as an employé or because of his employment by said Oriental Oil Company.

On June 21, 1922, motion was filed by appellee as defendant in cause No. 39401-B to consolidate said cause with...