Lumbermen's Reciprocal Ass'n v. Henderson

• Decision Date: 27 March 1929
• Docket Number: (No. 1150-5110.)
• Citation: 15 S.W.2d 565
• Parties: LUMBERMEN'S RECIPROCAL ASS'N v. HENDERSON.
• Court: Texas Supreme Court

15 S.W.2d 565

LUMBERMEN'S RECIPROCAL ASS'N v. HENDERSON.

(No. 1150-5110.)

Commission of Appeals of Texas, Section A.

March 27, 1929.

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

Suit by Sylvester Henderson against the Lumbermen's Reciprocal Association to set aside purported compromise and settlement agreement of compensation claim and order of Industrial Accident Board approving such agreement. Judgment of trial court setting aside decision of Industrial Accident Board refusing to reopen proceeding was affirmed by the Court of Civil Appeals , and the defendant brings error. Judgments of district court and Court of Civil Appeals affirmed in part, and in part reversed and remanded.

D. C. Bland, of Orange, and Andrews, Streetman, Logue & Mobley, of Houston, for plaintiff in error.

Dies, Stephenson & Dies, of Orange, for defendant in error.

NICKELS, J.

The opinion of the Court of Civil Appeals is reported at page 646 of 1 S.W.(2d), and to it we make reference for a general statement of the case.

1. That court applied a presumption of actual receipt (on July 22, 1926) by the Industrial Accident Board of notice of "appeal" (section 5, art. 8307, R. S. 1925), because the "notice" properly addressed, stamped, and registered, was deposited in the mails at Orange and left that place in due course at "about 7:20 o'clock p. m. July 21st," so that, in due course, it should have reached the post office in Austin (locus of the board) early in the morning of July 22d. Thus, it was held, there is proof of notice given within the 20-day period (section 5, art. 8307).

Since the presumption of receipt of mail by addressee obtains (when at all) "in the absence of evidence to the contrary," it became necessary for that court to determine whether such evidence exists. It held that certain "evidence" (urged as destructive of the ground for the presumption) "has no probative force," and in this, we think, there was error. The statement of facts, "in all things approved" by counsel for the parties and by the district judge, includes a recital that "counsel for plaintiff" (Henderson) "offered in evidence certified copy of the notice of appeal given to the Industrial Accident Board by the plaintiff * * * as received by the Board on July 26, 1926." The copy thus "certified" included this notation: "Industrial Accident Board, State of Texas, received July 26, 1926." We do not perceive just reason for saying that counsel's statement (having an admissive quality) or the "notation" itself (separately considered) is without relevancy to the date of receipt of the "notice," and hence without probativeness. The question presented does not include one of admissibility of evidence as against objections made; in consequence, Gen. Acc. Fire & Life Assurance Corp. v. La Fair (Tex. Civ. App.) 294 S. W. 247, Burton v. McGuire (Tex. Civ. App.) 3 S.W.(2d) 576, Tinsley v. Rusk County, 42 Tex. 40, and Robertson v. DuBose, 76 Tex. 1, 13 S. W. 300, cited by defendant in error, are not in point, and it is unnecessary to determine whether the "notation" should have been excluded if objection had been made.

In our opinion, the showing made is that "notice" was not given within the 20-day period, even if such "notice" (when required) can be given by mail (see Producers' Oil Co. v. Daniels, 112 Tex. 45, 244 S. W. 117), and about which question we neither express nor imply a conclusion.

2. In view of what has been said herein above and in such cases as Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, and Oilmen's Reciprocal Ass'n v. Franklin, 116 Tex. 59, 286 S. W. 195, it becomes necessary to determine whether there was jurisdiction in the district court for the judgment rendered.

According to the petition: (a) Compensible injuries occurred to Henderson January 13, 1925, and notice thereof and claim therefor were properly made; (b) the insurer paid "compensation" until "about the 20th day of September, 1925"; (c) about the date, just mentioned, he was paid $111.38 by agents of the insurer with the representation that the payment was by way of advance "for the following three months," but with the requirement that he sign "some character of statement which he understood to be a receipt for the money paid him," his signature being procured by fraudulent representations of that character for the paper and transaction and his illiteracy, etc.; (d) he made no agreement for settlement; (e) thereafter he received a "notice" from the Industrial Accident Board "that a compromise settlement" evidenced by the instrument mentioned had been "approved" by the board September 28, 1925; (f) that proceeding before the board was ex parte; (g) he then employed attorneys and made application to the board for vacation of the approval order and for the opportunity to "present evidence to show the full liability" of the insurer, etc., which application was overruled July 2, 1926; (h) because of the fraud alleged suit is brought to set aside the purported settlement agreement and the order of July 2, 1926, and to recover "compensation" as provided for in the Workmen's Compensation Law as applicable to the facts. Whether the board made an award of compensation prior to the "settlement" and approval thereof is not made to appear either in the pleading or the proof.

Averments of fraud in procurement are essentially of judicial cognizance; and because the Industrial Accident Board is not a court (article 5, Constitution; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 556), its action is in nowise a condition precedent to institution of judicial proceedings to secure appropriate relief. Accordingly, Henderson's application to the board for vacation of the asserted agreement was not required, and the board's declination to grant that prayer (evidenced by the...