Oilmen's Reciprocal Ass'n v. Harris

• Decision Date: 01 December 1926
• Docket Number: (No. 715-4637.)
• Citation: 288 S.W. 809
• Parties: OILMEN'S RECIPROCAL ASS'N v. HARRIS et al.
• Court: Texas Supreme Court

288 S.W. 809

OILMEN'S RECIPROCAL ASS'N v. HARRIS et al.

(No. 715-4637.)

Commission of Appeals of Texas, Section B.

December 1, 1926.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Suit by D. C. Harris and others against the Oilmen's Reciprocal Association. From a judgment for plaintiffs, defendant appealed to Court of Civil Appeals. On certified question. Question answered.

Mort. H. Royston, of Galveston, and H. F. Montgomery, of Houston, for appellant.

Geo. G. Clough and Thos. C. Turnley, both of Houston, for appellees.

SPEER, J.

The case is before us upon certified question from the First district, as follows:

"The question herein certified arises out of the following facts appearing from the record in this cause:

"Within due time after proper notice, the appellee Harris filed his petition with the Industrial Accident Board, advising it that he had been accidentally injured while in the course of his employment as a laborer for the Texas City Sugar Refining Company, a subscriber under the Employer's Liability Act (Vernon's Ann. Civ. St. 1925, arts. 8306-8309), of which the appellant, Oilmen's Reciprocal Association, was the insurer; that his injuries consisted of having three fingers of his right hand so mashed in a washing machine as to result in the entire loss of the use of that hand and arm, thereby totally and permanently incapacitating him from pursuing his former vocation of a common laborer, in which the use of both his hands and arms was indispensible. While he did not state that he and the insurer had been unable to agree as to compensation, he further alleged, in substance, that the weekly payments due to him from it were wholly insufficient to maintain himself and his family; that he was without funds, had no property, was a common laborer depending upon his hands for a livelihood, and that to deny him a lump sum settlement would work a hardship and injustice upon him and his family; he prayed that his petition be heard, that he be given a lump sum settlement equal to 60 per cent. of his average weekly wages for 401 weeks, or $5,052.60, and `such other and further orders, judgments, and decrees, as he was entitled to, under the facts and the law.'

"The board received, filed, and considered this application, taking the action upon it reflected in the following official letter to his attorney of record:

                                 "`August 2, 1924
                

"`J — 15632. In re D. C. Harris v. Texas Sugar Refining Company. Thos. C. Turnley, Esq., Attorney at Law, Galveston, Tex. — Dear Sir: I am directed by the board to advise that your request for a hearing on lump sum settlement is denied, for the reason that this claim does not come within the classification of the lump sum settlement, as provided for in section 15, part 1, of the act. If you will bring your petition under the proper provisions of the act — section 15-A, part 1 — and show cause for reduction of the period and corresponding increase of the amount of weekly payments, the board will likely give the application such consideration as it merits. Yours very truly, Industrial Accident Board, by ______, Secretary.'

"Thereupon, and again within due time and after proper notice that he would not abide by this action of the Accident Board, the appellee filed this suit in court, again in like maner setting up all the facts, alleging that the board had made a final ruling refusing to grant his application for a lump sum settlement, and seeking the same at the hands of the court, praying there as follows:

"`Wherefore, premises considered, plaintiff prays for citation against the defendant in the terms of the law; and that on final hearing hereof he have judgment against the defendant, requiring it to make a lump sum settlement to him on account of his injuries, as hereinbefore stated; that he have judgment against the defendant for the sum of $13.44 per week, for a period of 401 weeks, to be paid, however, in one lump sum, or to wit, the sum of $5,389.44; and plaintiff prays for all such other and further relief as he might be hereunto entitled at law or in equity and will ever pray, and including costs of court.'

"Appellee was injured June 18, 1924. Notice of injury was received by Industrial Accident Board June 20, 1924. Appellant's report of initial payment of compensation was received by Industrial Accident Board July 8, 1924. Appellee's application was filed with the board July 24, 1924, and the board's action thereon, as reflected in its letter to appellee's attorney of record, which was copied in our original certificate, was taken on August 2, 1924.

"A trial of the cause in the district court of Galveston county resulted in a judgment in favor of the appellee for a lump sum of $2,069.50, as the present value of 60 per cent. of his average weekly wages for 150 weeks. From that judgment, the insurer has taken an appeal to this court.

"Because of doubt about the matter here, we deem it advisable to propound for your answer this question:

"Was this action taken thereon by the Industrial Accident Board such a final ruling and decision in the cause as conferred jurisdiction upon the district court to entertain it?"

Accompanying this certificate is a certified copy of an opinion of the Court of Civil Appeals in which the question propounded is correctly decided to the effect that such action by the Industrial Accident Board was such final ruling and decision as to authorize an appeal to the district court. In that opinion it is said:

"Under the circumstances, no reason occurs for not holding this to be a final ruling and decision of the board in the matter; the only claim presented to it was one for a lump sum settlement, based on the averments that ...