Mozley v. American General Ins. Co.

• Decision Date: 13 May 1959
• Docket Number: No. 13466,13466
• Citation: 324 S.W.2d 925
• Parties: Anna Mae MOZLEY et al., Appellants, v. AMERICAN GENERAL INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 925

324 S.W.2d 925

Anna Mae MOZLEY et al., Appellants, v. AMERICAN GENERAL INSURANCE COMPANY, Appellee.

No. 13466.

Court of Civil Appeals of Texas, San Antonio.

May 13, 1959.

Rehearing Denied June 10, 1959.

Putman & Putman, San Antonio, far appellants.

Clemens, Knight, Weiss & Spencer, George H. Spencer, San Antonio, for appellee.

MURRAY, Chief Justice.

This suit was instituted by Anna Mae Mozley and Jack Collens Mozley, widow and minor son, respectively of Jack Clarence Mozley, deceased, seeking to recover death benefits under the Workmen's Compensation Act, Article 8306 et seq., on the life of Jack Clarence Mozley, deceased, hereinafter referred to as Jack Mozley. The employer was Longhorn Portland Cement Company of San Antonio, Texas, and the insurance carrier, American General Insurance Company.

Jack Mozley died on July 2, 1957, allegedly as a result of an injury which he received while employed at Longhorn Portland Cement Company. The widow and son filed a notice of fatal injury and a claim for compensation within due time, as provided by law. In both the notice of fatal injury and claim for compensation, they described the cause of death as being 'sudden on the job strain which caused rupture of aortic aneurysm into midesophagus.' The date of the injury was given as the 13th day of June, 1957.

The Industrial Accident Board in due time, after proper hearing, refused the claim. The claimants gave notice of appeal, and in due time instituted this suit. In their petition they alleged that on or about the 13th day of June, 1957, 'while in the course of his employment for Longhorn Portland Cement Company at San Antonio, Bexar County, Texas, Jack Clarence Mozley, husband of Anna Mae Mozley, sustained an accidental injury which said injury resulted in his death on or about July 2, 1957.' This suit was filed on February 12, 1958. Thereafter, on March 4, 1958, the American General Insurance Company filed its answer and excepted to plaintiffs' petition in the following language:

'1. Defendant specially excepts to the allegation in Paragraph V of Plaintiffs' original petition that Jack Clarence Mozley sustained an accidental injury on or about June 13, 1957, because such allegation is a conclusion which completely fails to inform defendant of the place, manner and nature of the alleged accidental injury, so that defendant is unable to prepare its defense to plaintiffs' suit.'

In response to this special exception, the plaintiffs filed a trial amendment alleging, among other things, the following:

'Plaintiffs would show that while such policy was in full force and effect and on or about June 11, 1957, while in the course of his employment for Longhorn Portland Cement Company at San Antonio, Bexar County, Texas, Jack Clarence Mozley, husband of Anna Mae Mozley, sustained a scratch to his right ear; that following such scratch the eggs of a fly were laid in the ear; subsequently the eggs hatched into maggots and that the maggots ate upon the tissue of his body producing a strain upon the nervous and circulatory systems of his body; that as a result of such strain and consequent anxiety and worry over his condition the strain caused his blood pressure to raise; that prior to the incurrence of the afore-described strain the aorta of his body was affected with the condition of aneurysm and that the aforesaid strain in itself and together with the results of the hereinafter described strain was a producing cause of the rupture of the aorta aneurysm and his death on July 2, 1957. That following the maggot infestation as aforesaid with the subsequent strain upon his circulatory system Jack Mozley was unable to eat or sleep normally, losing vitality and strength.'

Thereafter defendant filed its plea in abatement and first amended original answer alleging, among other things, as follows:

'1. As shown by certified copies attached hereto, on December 5, 1957, the plaintiffs herein, through their attorney, filed with the Texas Industrial Accident Board in its cause No. R-62,216, a notice of fatal injury wherein it was alleged that on June 13, 1957, Jack C. Mozley sustained a fatal injury at the plant of his employer, Longhorn Portland Cement Company, and that 'the cause of death was sudden on the job strain which caused rupture of the aortic aneurism into midesophagus.'

'2. Based upon such claim, the Industrial Accident Board rendered the following award:

"That said Mrs. Anna Mae Mozley, Jack Collens Mozley, Virginia Ann Oberman and their attorneys have failed to establish by proof that Jack Clarence Mozley, deceased, suffered accidental injury or occupational disease in the course of his employment for subscribing employer resulting in his death herein as alleged, but, on the contrary, it has been made to appear that his death was due to natural causes. Therefore, said claims are denied.'

'3. The subject matter of Paragraph V. of plaintiffs' trial amendment and particularly the alleged accidental injuries described therein were never presented to the Industrial Accident Board and were never considered or passed upon by said Board. Accordingly, this court has no jurisdiction over plaintiffs' claim arising out of the alleged accidental injury of June 11, 1957, and this court has no jurisdiction over plaintiffs' claim arising out of the alleged accidental injury of June 30, 1957.'

Attached to the plea in abatement were the proceedings had before the Industrial Accident Board.

On November 18, 1958, the trial court entered judgment sustaining the plea in abatement and dismissing the cause, from which action Anna Mae Mozley and Jack Collens Mozley have prosecuted this appeal.

The question here presented is whether or not the injury described in the trial amendment is the same injury described in the notice and claim. It is quite clear that the injury described in the petition is a different injury from the one described in the notice and claim.

Section 4a of Article 8307, Vernon's Ann.Civ.Stats., provides as follows:

'Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of the first distinct manifestation of an occupational disease; or, in case of death of the employee or in the event of his physical or mental incapacity, whthin six (6) months after death or the removal of such physical or mental incapacity. For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board. Acts 1917, p. 269; Acts 1947, 50th Leg., p. 180, ch. 113, Sec. 10.'

It is well settled that unless the employer is given notice of the injury and the claim is acted upon by the Industrial Accident Board, the courts have no jurisdiction to hear and determine a suit for compensation based on such injury. Heard v. Texas Compensation Ins. Co., 5 Cir., 87...