Hood v. Texas Employers' Ins. Ass'n

• Citation: 260 S.W. 243
• Decision Date: 08 March 1924
• Docket Number: (No. 9070.)
• Parties: HOOD v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Court of Appeals of Texas

260 S.W. 243

HOOD v. TEXAS EMPLOYERS' INS. ASS'N.

(No. 9070.)

Court of Civil Appeals of Texas. Dallas.

March 8, 1924.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by J. M. Hood against the Texas Employers' Insurance Association. Judgment for defendant and plaintiff appeals. Affirmed.

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

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

VAUGHAN, J.

This was a suit brought by appellant under what is commonly known as the Workmen's Compensation Act. Appellant, by way of his third amended original petition, in effect alleged that appellee issued to the Texas Pipe Line Company a policy of insurance covering accidental injuries resulting in total and permanent disability to the employés of the Texas Pipe Line Company, said pipe line company being at the time an employer of more than three employés; that said policy was in full force and effect on the 21st day of June, 1919; that appellant was on, to wit, the said last-named date, an employé of the Texas Pipe Line Company and, until he sustained the permanent disability as alleged by him by reason of such employment, was entitled to the benefits of such policy of insurance in case of injury, etc.; that while in the employ of said Texas Pipe Line Company on, to wit, the 21st day of June, 1919, he sustained serious and permanent personal injuries that resulted in his total and permanent disability, which disability occurred by reason of an accident and resultant injury occurring in the county of Navarro, state of Texas.

For the purpose of showing that his claim for compensation on account of injuries received by him as an employé of the Texas Pipe Line Company had been duly presented to and passed upon by the Industrial Accident Board of Texas, and that he had properly appealed from the final order entered by said board, he alleged:

"That for the purpose of showing that the defendant in this case was before the Industrial Accident Board of Texas as alleged in plaintiff's claim for compensation for accidental injury received by the plaintiff in the course of his employment as a carpenter for the Texas Pipe Line Company as plaintiff's employer, and in cause No. E-9585, In re J. M. Hood, Employé, versus Texas Company, Employer, Texas Employers' Insurance Association, Insurer. Plaintiff further avers that on, to wit, about the 1st day of January, A. D. 1920, the plaintiff filed with the said board an affidavit of K. E. Davis, which in effect shows that, after the plaintiff had received an injury at Gates with the Texas Company, he had a short time thereafter received another injury in the course of his employment in the pipe line department of said company which is the department of the Texas Pipe Line Company, totally incapacitating the plaintiff to work, labor, or earn money during all the balance of plaintiff's natural life, a certified copy of which affidavit is hereto referred to, being filed among the certified papers from the board and made a part of this petition as though copied herein; that on or about, to wit, the 21st day of January, A. D. 1920, the plaintiff caused to be filed with the said Industrial Accident Board in the same said styled and numbered cause before said board his own affidavit, in which, among other things, he says: `Affiant further states that he has recently learned that the Texas Pipe Line Company is a different corporation from the Texas Company, but controlled, as he understands, by the same people, and that he sustained his second injury on, to wit, the 21st day of June, 1919, while in the employ of the Texas Pipe Line Company about one and one-half miles out from the city of Corsicana, Tex.'"

That theretofore appellant had filed his claim with the Industrial Accident Board for compensation for accidental injury alleged to have been received by him while in the course of his employment with the Texas Company, said claim being styled No. E-9585, "In re J. M. Hood, Employé v. Texas Company, Employer, Employers' Insurance Association, Insurer," on the records of said Industrial Accident Board.

In said cause No. E-9585 said board made its final award on the 5th day of March, A. D. 1920, which alone passed on the appellant's claim for compensation on account of injuries alleged to have been received by him as an employé of the Texas Company, to wit:

"J. M. Hood, Employé, No. E-9585, v. Texas Company, Employer, Texas Employers' Insurance Association, Insurer. On this 5th day of March, 1920, came on to be considered by the Industrial Accident Board the claim of J. M. Hood against the Texas Employers' Insurance Association, and the board finds as follows: That, following the alleged infliction of the injuries upon which this claim is founded, no notice was given within 30 days after its happening and neither the subscriber herein or the association had notice of these alleged injuries from any other source and the claimant, the said J. M. Hood, has not satisfied this board that his claim is a meritorious one, nor has he shown to the board's satisfaction that there is any good cause for his failure to give notice in the manner required by law in such way as would justify it in waiving said requirement to give notice within said period of 30 days, and therefore the board is without jurisdiction and power to proceed further in undertaking a determination of the said claim. It is therefore ordered, adjudged and decreed by the Industrial Accident Board that the said claim for...