Lumbermen's Reciprocal Ass'n v. Day

• Decision Date: 05 June 1929
• Docket Number: (No. 1075-5288.)
• Citation: 17 S.W.2d 1043
• Parties: LUMBERMEN'S RECIPROCAL ASS'N v. DAY.
• Court: Texas Supreme Court

17 S.W.2d 1043

LUMBERMEN'S RECIPROCAL ASS'N v. DAY.

(No. 1075-5288.)

Commission of Appeals of Texas, Section B.

June 5, 1929.

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

Suit by James Day against the Lumbermen's Reciprocal Association. Judgment for defendant was reversed and remanded , and it brings error. Judgment of Court of Civil Appeals affirmed, and cause remanded.

Touchstone, Wight, Gormley & Price, all of Dallas, for plaintiff in error.

White & Yarborough, of Dallas, for defendant in error.

SHORT, P. J.

This suit involves the construction of section 12, art. 8307, of the Workmen's Compensation Act, which is as follows: "Where the liability of the association or the extent of the injury of the employé is uncertain, indefinite, or incapable of being satisfactorily established, the Board may approve any compromise, adjustment, settlement or commutation thereof" that is "made between the parties." In this case it conclusively appears that the defendant in error claimed that he received an injury to one of his eyes on April 19, 1926, while engaged in the work of his employer, who was a subscriber under the Workmen's Compensation Act, with the plaintiff in error, carrying the compensation insurance. The final result was that the injured eye had to be removed, and the other eye became involved by reason of the injury to such extent that the vision is now greatly impaired and may be totally lost. Before the removal of the injured eye, and before the present impairment of the vision of the other eye existed, and at a time when defendant in error was suffering very much from the injured eye, a compromise adjustment of the claim for compensation insurance was made between the adjuster of the insurance company and the defendant in error, by the terms of which defendant in error, was to be paid the sum of $500 in full settlement of the claim, but, before this amount was accepted by the defendant in error, it was increased to $600. This adjustment was submitted, as required by law, to the Industrial Accident Board, together with the reason for making the compromise agreement, and was approved, and the money paid, whereupon the defendant in error executed a release. This occurred in August, 1926.

The compromise agreement, among other things, recites that: "The facts and circumstances connected with and surrounding the infliction of the injury make the liability of Lumbermen's Reciprocal Association uncertain and indefinite, or incapable of being satisfactorily established * * * the loss of vision and condition of claimant's eye due to glaucoma. Investigation shows that he had trouble with this eye two years ago. Injury only caused it to be inflamed."

Thereafter an application was made to the Industrial Accident Board to set aside the order approving the agreement, and to open up the matter again, and to grant the defendant in error further relief. This was refused. Thereupon this suit was instituted, and upon a trial, after hearing the evidence, the district judge instructed the jury to return a verdict for the plaintiff in error. This was done, and judgment was entered accordingly. Upon appeal to the Court of Civil Appeals at Dallas, the judgment of the district court was reversed, and the case remanded for another trial. 8 S.W.(2d) 709.

The plaintiff in error's application for writ of error was granted upon the following proposition, under the first assignment: "Under the Workmen's Compensation Act a compromise settlement made between an injured man and the compensation insurance company duly approved by the Industrial Accident Board, the money being paid, constitutes a bar to any further claim on his part for compensation, in the absence of the showing of fraud, accident or mistake and where such a claim has been duly compromised and settled, with the approval of the Board, the injured claimant is not entitled to recover additional compensation on the sole ground of a showing of a change in his condition after the compromise settlement."

We think this proposition states the law of this case, and to the extent that the opinion of the Court of Civil Appeals holds to the contrary, it is error.

Section 5 of article 8307 of the same act recognizes the right of the party to make a settlement provided for in section 12. Section 5 is as follows: "All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the Board." In Jenkins v. Texas Employers' Insurance Association (Tex. Civ. App.) 211 S. W. 349, in which a writ of error was refused, similar provisions, under the Workmen's Compensation Act of 1913, were construed in accordance with the law announced in the above proposition. The Court of Civil Appeals, in holding that a compromise agreement by the parties, duly approved by the board, could be set aside upon the showing of the change of condition of the injured party, based its holding on section 12d of article 8306, which permits the board, upon a showing of a change of condition, mistake, or fraud, to review a previous award. This section of the act is an entirely separate one from that dealing with the subject of compromise. The law must be construed so as to give effect to all its parts, if it can be done. The Legislature has seen fit to authorize a settlement by compromise for either of two reasons, one being where the liability of the association is uncertain, and the other where the injury of the employé is uncertain, indefinite, or incapable of being satisfactorily established.

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