Maryland Casualty Co. v. Jones
| Decision Date | 30 April 1934 |
| Docket Number | No. 4111.,4111. |
| Citation | 73 S.W.2d 668 |
| Parties | MARYLAND CASUALTY CO. v. JONES. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
Suit by E. E. Jones against the Maryland Casualty Company to set aside an award by the Industrial Accident Board under the Workmen's Compensation Law. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Simpson, Dorenfield, Foster & Fullingim, of Amarillo, and Alfred M. Scott, of Lubbock, for appellant.
Robert P. Brown, of San Angelo, and D. H. Bradley, of Lubbock, for appellee.
This is a workmen's compensation case. Its general nature is sufficiently shown by the following quotation from appellee's second amended original petition: "Plaintiff would further show that on the 13th day of November, 1931, he was employed as a day laborer and carpenter's helper in the construction of the aforesaid building and while working on a scaffold about ten feet, more or less, above the ground, through the negligence of said construction company said scaffold fell and plaintiff was catapulted to the concrete floor where a heavy timber fell, breaking plaintiff's left leg above the ankle; and plaintiff would further show that by virtue of the aforesaid breaking of the bones in the left leg, it has failed to properly heal in that the bones have not healed together, being in a strained and crooked position, leaving the leg in such condition in that the bones have not grown back properly, resulting in pain, swelling and irritation, that it has lost its functioning powers, preventing plaintiff from bearing his weight upon the same without intense and excruciating pain, such pain preventing the use of the said left leg, there being a total loss of the use of the same, which plaintiff alleges is permanent; plaintiff would further show that he cannot use the leg to walk or stand upon and carry on his labors in view of the fact that an acute, intense and excruciating pain emanates from and flows to the other parts of his body, causing his entire body and nervous system to be upset and useless while walking or standing on the same; and further that he could perform some sort of labor if it were not for the great pain and discomfort to the entire body flowing from the broken and unhealed bones of the leg together with the torn ligaments, muscles and tissues, in that the pain coming from the unhealed and permanently injured leg prevents him from using the other parts of his body, he being forced to walk with crutches at all times, resulting in a total disability to the entire body as far as the performance of labor for wage and profit is concerned; plaintiff would further show that he has been totally disabled from performance of labor since the 13th day of November, 1931, to this time, and he further says that he will be totally disabled in the future for a period of two hundred seventy one (271) weeks; and plaintiff would further show that all of the aforesaid injuries were received while plaintiff was working in the due course of his employment."
Judgment was entered for appellee upon the answers to special issues submitted to the jury.
It is not necessary to set out the evidence respecting the injury further than to say that it fully sustained the allegations quoted above.
The major legal issue here is raised by the following evidence: An award was made in this case by the Industrial Accident Board on June 30, 1932. Notice of intention by appellee not to abide by said award was received by said Board on July 7, 1932. On July 23, 1932, appellee filed this suit in the district court of Lubbock county to set aside said award, accompanying his petition with the following letter:
It further appears that appellee almost immediately thereafter endeavored to procure a waiver of the issuance and service of citation, but failed, and then requested the issuance of a citation and one was duly issued on August 25, 1932.
We are confronted at the outset with a serious and original question on its facts, based upon appellant's assignment questioning the court's action in overruling its plea to the trial court's jurisdiction. In substance, appellant's proposition under this assignment is that the record upon the above facts shows as a matter of law appellee failed to "institute and prosecute" his suit within the twenty-day period prescribed by section 5 of article 8307, R. S. 1925, as amended (see Acts 42d Legislature 1931, p. 378, c. 224, § 1 [Vernon's Ann. Civ. St. art. 8307, § 5]), and the district court of Lubbock county was therefore without jurisdiction to hear and determine this cause. The pertinent provisions of the above statute are as follows:
Construing this, Judge Critz holds that the phrases "bring suit" and "institute and prosecute," occurring in the quoted language of said article, mean the same thing. He further observes: "But we think that the party appealing from the rulings and decision of the board has complied with this statute when he files his petition in the proper court with the bona fide intent that citation shall issue and be served at once upon the defendants." Ocean Accident & Guaranty Corporation v. May (Tex. Com. App.) 15 S.W.(2d) 594, 597.
This last-quoted language is but the restatement of a rule long obtaining in Texas, and expressed in somewhat variant language in many cases. We quote from one of these: Austin v. Proctor (Tex. Civ. App.) 291 S. W. 702, 703.
Notwithstanding this pointed language, we are not able to reach the conclusion that this case should be reversed and rendered upon the hypothesis that the facts present here conclusively show as a matter of law that appellee did not "institute and prosecute" his suit within the said twenty-day period. Rather we think a fact issue was presented for the determination of a jury. This we now attempt to demonstrate. The record shows conclusively that appellee filed his suit within the twenty-day period required by article 8307, but had the issuance of citation delayed and same was not issued until a few days after...
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...suit, which must be evidenced by acts of the party filing same, an undisclosed intention not being sufficient". Maryland Casualty v. Jones, Tex. Civ.App.1934, 73 S.W.2d 668; adopted by Tex.Sup.Ct., 129 Tex. 392, 104 S.W. 2d 847, 849. Similarly, in Ocean Accident & Guaranty Corp. v. May, Tex......
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