McClure v. Georgia Casualty Co.

• Decision Date: 16 May 1923
• Docket Number: (No. 246-3790.)
• Parties: McCLURE v. GEORGIA CASUALTY CO.
• Court: Texas Supreme Court

251 S.W. 800

McCLURE v. GEORGIA CASUALTY CO.

(No. 246-3790.)

Commission of Appeals of Texas, Section A.

May 16, 1923.

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

Proceedings under the Workmen's Compensation Act by M. A. McClure, claimant, opposed by the Higgins Oil & Fuel Company, employer, and the Georgia Casualty Company, insurance carrier. Judgment in insurance carrier's suit to set aside an award by the Industrial Accident Board modified by the Court of Civil Appeals (239 S. W. 644), and claimant and insurance carrier bring error. Affirmed.

E. B. Pickett, Jr., of Liberty, for plaintiff in error.

Frank S. Anderson, of Galveston, for defendant in error.

GALLAGHER, P. J.

Plaintiff in error, by a final ruling and decision of the Industrial Accident Board, was awarded compensation at the rate of $15 per week for a period not to exceed 401 weeks for injuries received while in the employ of the Higgins Oil & Fuel Company, a subscriber under the Employers' Liability Act, carrying a policy of insurance with the Georgia Casualty Company, defendant in error. Defendant in error, being dissatisfied with such ruling and decision, gave notice in writing to said Board and to plaintiff in error that it was not willing to be bound thereby, and filed suit in the district court of Liberty county to set aside said award. Plaintiff in error, contending that said suit was not filed within the required time, and that the award of the Board had therefore become final and enforceable, pleaded said award by cross-action and claimed the right to mature the same and recover liquidated damages and reasonable attorney's fees as provided by the statute in such cases. The trial of the case resulted in a judgment in favor of plaintiff in error against defendant in error for the sum of $15 per week, beginning June 1, 1920, and continuing until the date of judgment and thereafter, unless altered or modified by the Industrial Accident Board or by agreement of the parties with its approval, not to exceed 401 weeks in all, and for $721.80 liquidated damages, and for the further sum of $2,000 attorney's fees. Defendant in error appealed. The Court of Civil Appeals modified the judgment of the trial court by striking therefrom the liquidated damages and attorney's fees recovered therein and affirmed it as so modified. 239 S. W. 644. Both parties applied for a writ of error, and both applications were granted and are now before us for consideration.

The award of the Industrial Accident Board was made on October 22, 1920. On the 3d day of November thereafter defendant in error, by its attorney, mailed in registered letters notices to the Board and to plaintiff in error that it did not agree to and was not willing to be bound by said ruling and decision of the Board, and that it would within 20 days after the service thereof bring suit to set the same aside. The notice mailed to the Board was received by it on November 8, 1920, and the notice mailed to plaintiff in error was received by him on November 9, 1920. Suit was filed November 24, 1920. The notice to the Board was received by it on the seventeenth day after its final ruling, decision and award and the notice to plaintiff in error was received by him on the eighteenth day after such award. There is no contention that such notice was not given within the 20 days from the date of the award as required by law. The issue raised by plaintiff in error is whether such notice was "given" within the meaning of said law when it was deposited in the mail or when it was actually received by the parties. If such notice was given within the meaning of the law when deposited in the post office, suit to set aside the award was not brought within 20 days thereafter, as required by law. If such notice was not given within the meaning of the law until the respective parties received the same, such suit was brought within the required time. Article 5246 — 44, Complete Texas Statutes 1920 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246 — 44), reads, in part, as follows:

"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 and said board shall proceed no further toward the adjustment of such claim, other than as hereinafter provided. * * *"

The giving of notice to various parties is required by several provisions of the Workmen's Compensation Act. Articles 5246 — 77 and 5246 — 78 of the same, as embraced in said Complete Statutes (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 77, 5246 — 78), require the giving of notice by a subscriber to his employee that he has provided for payment of compensation for injuries under the provisions of said act. These provisions of the law were before this court in a recent case for construction, and we held that, when a statute directs that notice shall be given, but is silent with reference to the manner of giving the same, personal service of such notice upon the person to whom it is required to be given is necessary. Producer's Oil Co. v. Daniels (Tex. Com. App.) 244 S. W. 117, 118, and authorities there cited. We think the same rule should be followed in giving the notices required to be given by the article here under consideration. This suit having been brought within 20 days from the date when said notices were received by the respective parties, it was brought in time. Such being the case, defendant in error was not in default under the provisions of said law in failing to comply with the award. The statute gives liquidated damages and attorney's fees only in event of a failure and refusal to comply with a final order, decision, or award of the Board, which has become enforceable by reason of the fact that no valid proceedings to set the same aside have been instituted, and only after a suit has been brought to enforce such award and successfully prosecuted. The award of the Board in this case never became enforceable because defendant in error gave notice that it was not willing to be bound thereby and brought suit to set the same aside and prosecuted said suit to final judgment. When suit is brought to set aside an award, the trial is de novo. The claimant's right to compensation is put in issue and retried. If the claimant recovers compensation, he is entitled to enforce not the former order of the Board, but the judgment rendered by the court in such suit. Plaintiff in error was not entitled to recover either liquidated damages or attorney's fees. Complete Texas Statutes 1920, art. 5246 — 45 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246 — 45). See, also, Southern Surety Co. v. Nelson, 111 Tex. 140, 229 S. W. 1113, 19 A. L. R. 1387.

Plaintiff in error, McClure, was fireman for his employer on a well-drilling outfit working a 12-hour shift alternately with one Jim Hodge. It was necessary to keep the outfit continuously in operation and McClure had to remain at work until Hodge came to relieve him. Hodge had been habitually arriving late, requiring McClure to work overtime. McClure, on the day he received his injuries, remonstrated with Hodge, reminding him that he was expected to come on duty and relieve him at 6 o'clock, and that when he failed to do so he (McClure) was thereby required to work overtime. Hodge retorted that he was not working for McClure, but for the company. McClure said something about going to see the foreman, and after the exchange of a few words Hodge assaulted him, and during the fight between them Ed Hodge, a brother of Jim Hodge, slipped up behind McClure and hit him over the head with a club, inflicting serious and permanent injury which rendered him totally incapacitated for work within the meaning of that term as used in said act. The reason given by Ed Hodge for his assault on McClure was that he thought McClure was using a knife on his brother Jim. There had been no prior trouble between McClure and either of the Hodge brothers. McClure was not the aggressor in the fight and made no attempt to use a knife therein. Ed Hodge was indicted for assault to murder and pleaded guilty to aggravated assault on McClure.

Defendant in error contends that the injury received by McClure was not received in the course of his employment within the meaning of the Workmen's Compensation Act, and that on that account he is not entitled to recover herein.

Said act (article 5246 — 82, Complete Texas Statutes 1920 [Vernon's Ann. Civ. St. Supp. 1918, art. 5246 — 82]) provides that the term "injury sustained in the course of employment," as used therein, shall not include certain specified injuries....