Pruitte v. Ocean Accident & Guarantee Corporation, 4026.

• Citation: 40 S.W.2d 254
• Decision Date: 02 July 1931
• Docket Number: No. 4026.,4026.
• Parties: PRUITTE et al. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.
• Court: Court of Appeals of Texas

40 S.W.2d 254

PRUITTE et al. v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited.

No. 4026.

Court of Civil Appeals of Texas. Texarkana.

July 2, 1931.

Rehearing Denied July 4, 1931.

Appeal from District Court, Marion County; R. T. Wilkinson, Judge.

Suit by William Pruitte and others against the Ocean Accident & Guarantee Corporation, Limited, insurance carrier of Marshall Compress Company and of Jefferson Compress Company, employers, to set aside decision of the Industrial Board adverse to plaintiffs. From an adverse judgment, plaintiffs appeal.

Affirmed as to one cause of action, and reversed and remanded as to the other cause of action.

S. P. Jones and Franklin Jones, both of Marshall, for appellants.

Bibb & Bibb, of Marshall, for appellee.

SELLERS, J.

This is an appeal from a judgment of the district court of Marion county sustaining certain pleas of appellee to the jurisdiction of the court and dismissing causes No. 9687 and No. 9716 which had theretofore been consolidated by the court. It is alleged that Frank Pruitte, while working for the Marshall Compress at Marshall, Tex., on August 29, 1928, received an injury (heat prostration); that said Pruitte partially recovered from this injury, and on August 31, 1928, while working for the Jefferson Compress at Jefferson, Tex., received another such injury from which he died on September 6, 1928.

On September 15, 1928, Wm. Pruitte gave the following notice of fatal injury upon a form furnished by the Industrial Accident Board:

                         "Notice of Fatal Injury
                       "Industrial Accident Board
                             "Austin, Texas
                

"Section 4a, Part III. Unless the association or subscriber (employer) have notice of the injury, no proceedings for compensation for injury under this Act shall be maintained, unless a notice of the injury shall have been given to the association or subscriber (employer) within thirty (30) days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of same; or, in case of death of the employee or in the event of his physical or mental incapacity within six (6) months after the death or the removal of such physical or mental incapacity. Provided, that 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.

"This is to notify you Ocean Accident & Guarantee Corporation that on the 29th day of August, 1928, at about 11 o'clock A. M. Frank Pruitte sustained fatal injury while employed by Marshall Compress Co., Marshall, Texas. The place of injury was while working in cylinder at compress. The cause of death was heat prostration.

"State names and P. O. address of nearest relatives: Wm. Pruitte, 811 West Grand Ave., Marshall, Texas.

                                      "Wm. Pruitte
                                      "811 W. Grand Ave
                                      "Marshall, Texas
                

"Dated this 15 day of September, 1928.

"This notice should be executed in duplicate and one copy mailed to the Industrial Accident Board and the other copy delivered to the employer or the Insurance Company or Association carrying his insurance."

On the same date he filed the following claim for compensation with the Industrial Accident Board:

                   "Claim for Compensation for Death
                       "Industrial Accident Board
                             "Austin, Texas
                

"Note: This claim should be made out in duplicate, one copy thereof should be mailed to the Industrial Accident Board and the other copy should be delivered to the Employer or the Insurance Company or Association carrying his insurance.

"This is to notify you Ocean Accident & Guarantee Corporation that I claim compensation from you under the Employers' Liability Act of Texas, on account of the death of Frank Pruitte on the 6th day of Sept. 1928, which resulted from injuries sustained on the 29 day of August, 1928, while in the employ of Marshall Compress Company, Marshall, Texas. The place of injury was while working in cylinder at compress. The cause of death was heat prostration.

"Name and P. O. address of witnesses in support of claim: Geo. Washington, Marshall, Texas., Edd Richardson, Marshall, Texas; John Madison, 907 West Grand Ave., Marshall, Texas.

"Give names and P. O. address of the beneficiaries of the deceased (stating the kinship of each such Beneficiary to the deceased):

"Wm. Pruitte, 811 West Grand Ave.

"Ester Pruitte, 639 E. Eleven St., Riverside, Cal.

"Zepha Pruitte, 1205 E. Tenth St., Ft. Worth, Tex.

"Which of the legal Beneficiaries above named are minors? State ages: Ester Pruitte, age 15.

"Length of time employed in same employment previous to date of injury 20 years, with exception of two years.

"Wages of deceased employee on date of injury were $100.00 per month.

"Deceased was employed six days per week.

"This claim for compensation, with respect to such injury and because of the death of deceased, is made in behalf of and for each and all of the legal beneficiaries of the deceased, as well as by and for the undersigned, he herein acting for himself and such legal beneficiaries.

                                       "Wm. Pruitte
                                       "811 W. Grand Ave.,
                                       "Marshall, Texas.
                

"Dated this 15 day of Sept. 1928.

"Note: If it is claimed that the injury was caused through the violation, by the employer, of any statute enacted for the safety of the employees contributed to the injury or death of such employé, it is requested that it be stated in this claim for compensation.

"Note: Section 4a Part II. Employers' Liability Act. Unless the association or subscriber have notice of the injury, no proceedings for compensation for injury under this Act 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 thereof, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of same, or, in case of death of the employee or in the event of his physical or mental incapacity within six (6) months after the death or removal of such physical or mental incapacity. Provided, that 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."

On November 14, 1928, the Industrial Accident Board made the following order:

"Frank Pruitte (Dec'd), Employee, vs. Marshall Compress Company, Employer. N-23908.

"Ocean Accident & Guarantee Corporation, Ltd., Insurer.

"On this 14th day of November, A. D. 1928, after due notice to all parties at interest, came on to be considered by the Industrial Accident Board claims for compensation made and asserted herein by and in the names of Fred Pruitte, Sam Pruitte, Zepha Pruitte, and Ester Pruitte, surviving children of Frank Pruitte, deceased, against the Ocean Accident and Guarantee Corporation, Limited, which have not been settled by agreement between the parties, and the Board now finds and orders as follows:

"That said claimants have failed to sustain the burden imposed upon them by law to establish to the satisfaction of the Board that Frank Pruitte, deceased, suffered injury while engaged in the course of his employment in the capacity of employee which resulted in his death, but to the contrary it has been made to appear that his death was the result of natural causes in no way connected with or incident to his employment, and therefore, said Ocean Accident and Guarantee Corporation, Limited, ought to be and is hereby fully and finally acquitted and discharged from liability on account of claims of Ester Pruitte, Zepha Pruitte, Sam Pruitte, and Fred Pruitte, and it is so ordered, adjudged and decreed by the said Board."

No notice of dissatisfaction with this award was filed with the board within twenty days as required by the provisions of this act, nor was any appeal taken from the board's ruling. In fact, no further proceedings were had with reference to such claim until January 9, 1929, when Wm. Pruitte filed a motion with the board to reopen the case and reconsider the award entered on November 14, 1928.

On January 22, 1929, Wm. Pruitte qualified as guardian of Ester Pruitte, the minor referred to in the claim filed by Wm. Pruitte with the board.

On February 28, 1929, another order refusing to reopen the award of November 14, 1928, was made by the board, and within twenty days the appellants gave notice of their dissatisfaction with the board's ruling, which notice is as follows:

"Frank Pruitte (Dec'd), Employee, vs. Marshall Compress Company, Employer. N-23908.

"The Ocean Accident & Guarantee Corporation, Ltd., Insurer.

"The Industrial Accident Board,

"Austin, Texas.

"You will take notice that the claimants, William Pruitte, Fred Pruitte, Sam Pruitte, Zepha Pruitte and Ester Pruitte, are dissatisfied with the final award, ruling and decision entered by this Honorable Board on the 28th day of February, A. D. 1929, and within the statutory period from the date of filing hereof will file suit in the district court of the proper county to set aside said final ruling, decision and award made by the Industrial Accident Board on the 28th day of February, A. D. 1929.

"This 12th day of March, A. D. 1929."

Still another motion was made by the beneficiaries of Frank Pruitte to the board to reopen the award of November 14, 1928, which was...