Oilmen's Reciprocal Ass'n v. Franklin

• Decision Date: 16 June 1926
• Docket Number: (No. 829-4528.)
• Citation: 286 S.W. 195
• Parties: OILMEN'S RECIPROCAL ASS'N v. FRANKLIN.
• Court: Texas Supreme Court

286 S.W. 195

OILMEN'S RECIPROCAL ASS'N v. FRANKLIN.

(No. 829-4528.)

Commission of Appeals of Texas, Section A.

June 16, 1926.

On Motion for Rehearing, October 27, 1926.

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

Separate suits in the district court by J. C. Franklin against the Oilmen's Reciprocal Association, insurer, to enforce award of the Industrial Accident Board, and by the Oilmen's Reciprocal Association against J. C. Franklin to set aside the award, consolidated for trial. Judgment for J. C. Franklin, and both parties appealed to the Court of Civil Appeals, which certified questions to the Commission of Appeals. Questions answered.

Jones, Jones & Buck, of Marshall, for appellant.

Bibb & Caven, of Marshall, for appellee.

NICKELS, J.

An award of compensation for an injury which occurred in Marion county was made to J. C. Franklin by the Industrial Accident Board on September 15, 1924, in accordance with the terms of the Workmen's Compensation Law, as amended in chapter 103, Act of March 28, 1917 (Vernon's Texas Civ. & Crim. Stat. 1918 Supplement, arts. 5246 — 1 to 5246 — 91). Oilmen's Reciprocal Association, the insurer, within 20 days thereafter gave notice (as required in paragraph 5, part 2, of the Act) to Franklin and to the board that it would "not abide by said final ruling and decision." Within 20 days "after giving such notice," and on October 21, 1924, the Association filed suit (returnable to the November, 1924, term) against Franklin to set aside the award, but the suit was filed in the district court of Harrison county. In due course, and on November 1, 1924, Franklin filed his plea in abatement and bar insisting that the matter was not justiciable at all, and especially not in Harrison county, because the injury occurred in Marion county, and this suit, or any other of like purpose, had not been filed in the district court of that county within 20 days after giving of the notice, or at any time, as required by the act. To this plea the association answered that, "if the defendant is entitled to any relief," he is not entitled to abatement, etc., but only to a transfer of the case to Marion county "as upon a plea of privilege" of venue. Upon hearing, November 4, 1924, the court treated the matter as being one of venue merely, and ordered the case transferred to the district court of Marion county. After the transfer, Franklin renewed his plea, and it was again overruled. His exceptions, in each instance, are duly preserved.

In the meantime, on October 31, 1924, Franklin brought suit in the district court of Marion county against the association to enforce the award, alleging failure and refusal to pay or to bring suit, as required by the act, "in the county where the injury occurred to set aside the award."

Subsequent to the overruling of the plea in abatement, in the case first mentioned, the suits were consolidated. The result of a trial was a judgment reducing the amount of compensation but enforcing the award otherwise. All parties appealed. The case is now pending in the Court of Civil Appeals, Sixth District, and that court has certified these questions:

"Article 8307, sec. 5, Revised Statutes of 1925, of the Workmen's Compensation Act, authorizes suits to set aside awards of the Industrial Accident Board to be brought `in some court of competent jurisdiction in the county where the injury occurred,' within the time specified.

"Question 1. Is the requirement that a suit to set aside awards be brought in a court in the county where the injury occurred a matter of venue only, relating to the place of bringing the suit; or of jurisdiction, the power and authority conferred upon a particular judicial tribunal to rehear and finally determine the case? * * *

"Question 2. Did the district court of Harrison county err in transferring the case to Marion county instead of dismissing the same on the plea of J. C. Franklin?

"Question 3. Did the district court of Marion county acquire jurisdiction over the case of Oilmen's Reciprocal Association in virtue of the order of transfer made by the district court of Harrison county?

"Question 4. Did the district court of Marion county err in not dismissing the suit of the Oilmen's Reciprocal Association on the plea of J. C. Franklin?"

The excerpt quoted as from article 8307, R. S. 1925, is the language employed in the act of 1917 in force when the litigation arose and when the cases were tried. It is not the language used in the revision of 1925, but the matter is governed by the earlier statute, and the conclusions to be expressed relate to that statute without reference to any change of meaning, if any, imputed by the modified language of the revision.

The legislation in question marks off and occupies a field of special regulation. The Legislature purposed a very material change of rights and remedies available to employers and employees of the classes dealt with. Substantially, with the consent of those to be affected, pre-existent bases of rights were destroyed, and old remedies were made unavailable. In their stead, new conditions were prescribed under which rights would accrue, and hitherto unheard of remedies for the enforcement of those rights were named, as generally explained in Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S. W. 556. In becoming a "subscriber" under the law, the employer claims its benefits, and thereby voluntarily yields rights which he might otherwise have in substitution for those there prescribed, and by entering or remaining in the service of an employer who has thus become a "subscriber" the employee voluntarily effects a comparable change of position. As to a person, etc., who may become an "insurer," the statute itself, of course, is the source of all rights claimable, and the subjection of those rights to the remedies prescribed rests entirely in volition. As between the three persons affected in any case, new rights, new duties, and appropriate new remedies come into existence by operation of the law. There is, therefore, no basis for application of the rule under which it is thought the new remedy is but cumulative where the right itself was previously justiciable, and there is no express destruction of the pre-existent remedy. See 1 Cyc. p. 709. "It is in the general true that, if an affirmative statute which is introductive of a new law direct a thing to be...