Texas Employers' Ins. Ass'n v. Price

• Decision Date: 30 December 1926
• Docket Number: (No. 1948.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 291 S.W. 287
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. PRICE.
• Court: Texas Court of Appeals

291 S.W. 287

TEXAS EMPLOYERS' INS. ASS'N v. PRICE.

(No. 1948.)^*

Court of Civil Appeals of Texas. El Paso.

December 30, 1926.

Rehearing Denied January 20, 1927.

On Motion to Retax Costs, January 27, 1927.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Suit to set aside final ruling and decision denying workmen's compensation by G. E. Price against the Texas Employers' Insurance Association. Judgment was rendered for plaintiff. Defendant appeals, and plaintiff moves to dismiss appeal. Motion denied, judgment reversed, and case dismissed.

Lea, McGrady, Thomason & Edwards, of El Paso, for appellant.

R. A. D. Morton, of El Paso, for appellee.

WALTHALL, J.

Appellee's motion to dismiss for want of proper notice of appeal is overruled for the reason stated in A., T. & S. F. Ry. Co. v. Hix, 291 S. W. 281, this day decided by this court.

On January 1, 1924, appellee, Guy E. Price, then a resident of Texas, entered into a contract of employment at El Paso, Tex., with C. E. Goetting, a resident of Texas, to work as a mechanic on a road job which Goetting then had under contract and in progress in Lee county, N. M. Price entered upon his duties in New Mexico on February 4, 1924, under the contract of employment, and while so acting in the course of his employment suffered the injuries complained of, in Lee county, N. M. Goetting was at once notified of Price's injuries and took Price to a hospital in New Mexico, where he remained under the care of physicians for some three months, and was then removed to a hospital at El Paso, Tex., and was there, on September 21, 1924, operated upon by reason of his injuries. On November 17, 1925, Price filed his claim with the Industrial Accident Board of Texas, for compensation, against the appellant, Texas Employers' Insurance Association. On January 8, 1926, the Industrial Accident Board made its final ruling, dismissing the claim from consideration and discharging the Texas Employers' Insurance Association from liability, for the reason, as stated in its order, that Price did not make claim for compensation within the period of six months following the infliction of said injury, and had not established to the satisfaction of the board that his claim for compensation was meritorious, or that any good reason existed why the board should waive compliance with the legal requirement to file claim within six months.

In due time Price gave notice that he was not willing and did not consent to abide the final ruling, decision, and award of the board, and in due time filed this suit to set aside the award of the board, because, as alleged, not in accordance with the statutes of this state and unjust in denying to him its benefits.

This suit was filed and prosecuted to final judgment in the district court of El Paso county, Tex., resulting in a verdict and judgment in favor of appellee, Price, and against appellant, Texas Employers' Insurance Association, from which judgment appellant prosecutes this appeal.

Opinion.

The first question presented is that of jurisdiction, appellant insisting that, Price having pleaded and all the proof affirmatively showing that his injuries occurred in Lee county, N. M., the district court of El Paso county, Tex., did not have jurisdiction to hear the cause or dispose of the cause on its merits on an appeal from the final judgment of the Industrial Accident Board of Texas, refusing compensation, for the reason that El Paso county was not the county in which appellee's injuries occurred; that by express terms of the Texas Workmen's Compensation Act (Rev. St. 1925, arts. 8036-8309), no jurisdiction is vested in such court, and the trial judge should have dismissed the suit.

Appellant introduced in evidence policy No. 05146 with Texas Employers' Insurance Association, C. A. Goetting, subscriber, dated June 1, 1923, and expiring June 1, 1924. The accident to Price causing the injuries complained of occurred within the time covered by the policy. Pretermitting every other question raised by the pleadings or evidence occurring subsequent to the accident, and sought to be raised and presented by assignments and points in briefs filed, and for the purpose only of determining the one question of the jurisdiction of the district court of El Paso county, Tex., we will assume that the policy of appellant association was in full force at the time of the accident, and embraced the claim of appellee for compensation for the injury complained of and that the claim for compensation, under the provisions of the Workmen's Compensation Act of Texas, was duly and timely presented to the Industrial Accident Board of Texas and by the board disposed of by final order refusing award.

The rights sought to be enforced by the suit and the remedies provided therefor are purely statutory, as distinguished from the common-law rights and remedies, and for that reason the general rule to be applied is that the statutory provisions making effective such rights are exclusive and mandatory in asserting and maintaining such rights, and such rule is applied from the time of the injury to its final adjudication and necessary to the exercise of jurisdiction by every statutory agency. Mingus v. Wadley et al., 115 Tex. 551, 285 S. W. 1084, and the cases referred to in discussing the several propositions presented.

Article 8306, part 1, § 19, Texas Civil Statutes 1925, reads:

"If an employee who has been hired in this state sustained injury in the course of his employment he shall be entitled to compensation according to the law of this state, even though such injury was received outside of the state."

The portion of article 5246 — 44, Tex. Comp. St. 1920, having application to the question under consideration at the time of the accident, causing the injury, reads:

"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 giving such notice [to the adverse party and to the board] bring suit in some court of competent jurisdiction in the county where the injury occurred to set aside said final ruling and decision. * * * Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provisions of this act."

Revised Civil Statutes 1925, art. 8307, § 5, in force at the time of the filing of appellee's original petition herein, reads as does the article last above quoted, except that it provides that the interested party "shall within twenty days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision."

The above presents no material change in the law. The statutes quoted provide, in substance, that an employee, hired in this state and sustaining injury in the course of his employment, is entitled to compensation, though his injury was received outside the state. His claim for compensation must be duly presented to the Industrial Accident Board, and, if not willing and does not consent to abide by its decision, he must bring his suit in the county where the injury occurred to set aside the decision, and the rights and liabilities of the parties to the suit are determined by the provisions of the Workmen's Compensation Law. It is readily seen that, if the law providing that the suit to set aside the decision of the board must be brought in the county where the injury occurred is exclusive, mandatory, and jurisdictional, no exception being found in the law as to injuries occurring outside the state, the action of the...