Texas Employers Ins. Ass'n v. Goines
| Decision Date | 01 May 1947 |
| Docket Number | No. 4426.,4426. |
| Parties | TEXAS EMPLOYERS INS. ASS'N v. GOINES. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; W. S. Nichols, Judge.
Consolidated suits under the Workmen's Compensation Law by Texas Employers Insurance Association against Albert A. Goines and by Albert A. Goines against Texas Employers Insurance Association to set aside an award of the Industrial Accident Board for a specific injury. From a judgment for Albert A. Goines for total and permanent disability, the insurer appeals.
Affirmed.
Marcus, Carrington & Weller, of Beaumont, for appellant.
Fulmer & Fairchild, of Nacogdoches, for appellee.
This is an appeal from a judgment for total and permanent disability under the workmen's compensation law in the district court of Jefferson county.
The appellee, Goines, while still a minor, was injured in the course of his employment with Stone & Webster Engineering Corporation in Jefferson county and presented his claim before the Industrial Accident Board himself, not being represented by an attorney and having no guardian. Goines' right hand was hurt when it was jammed between a cement bucket and some machinery he was helping carry. He was injured June 18, 1945. In his affidavit filed with the Board in support of his claim for compensation he stated that he had lost all use of his right hand, that disability had begun on the date of the accident, that he claimed total disability from that date "to present time, still effective, or loss of member, right hand." On January 10, 1946, the Board made and entered its final award on his claim. The award was for a specific injury, and both the appellee Goines and the insurer, Texas Employers Insurance Association, filed suits in the district court of Jefferson county to set aside such award. Goines became 21 years of age on February 2, 1946. He filed his suit to set aside the award on February 18, 1946, while the suit of the appellant was filed February 15, 1946. In his petition in his suit to set aside the award, and in his cross action in the suit of the appellant to set aside the same award, Goines sued for total permanent disability, which he alleged to be the natural result of the same industrial accident upon which he had presented his claim himself before the Board. The court, on May 30, 1945, made an order consolidating the two causes.
On June 11, 1946, the appellant filed its plea in abatement to the cross action of the appellee, asserting that the court was without jurisdiction to hear and determine the claim for total permanent disability for the reason that Goines, although claiming in his cross action injury to his right shoulder and right side of his body and to the brachial plexus on the right side of his body, did not make claim for such injuries before the Industrial Accident Board but on the contrary made claim only for an injury to his right hand. Such plea further alleged that at no time did Goines claim before the Board that any part of his body except his right hand was injured nor did he claim that such injury affected his body generally, and further that the additional claims made by him in his cross action were never adjudicated by the Industrial Accident Board. The court, after a hearing thereon, overruled the plea to the jurisdiction.
The cause proceeded to trial before a jury and upon the jury's verdict, in response to special issues submitted, judgment was rendered in favor of Goines for total and permanent disability for 401 weeks at the rate of $20 per week. After the appellant's motion for new trial was overruled, it has duly perfected its appeal to this court.
The first five points presented by appellant relate to the jurisdiction of the district court to hear and determine the appellee's suit for total and permanent disability. The appellant says the only claim appellee made to the Industrial Accident Board, and the only claim passed upon by said Board, was an injury to his right hand, resulting in the loss of the use of his right hand only; that since appellee filed and prosecuted his claim himself before the Board and at all times material to said claim was a minor, and not sui juris, and since no claim for total and permanent disability could be submitted by him personally to the Board, no such claim of total and permanent disability was ever passed upon by the Industrial Accident Board; that since the appellee was a minor at all times while his claim was pending before the Industrial Accident Board, he did not and could not himself present and prosecute a claim for a general injury and total permanent disability, and the claim presented to the court differed from any claim that could have been presented to or passed upon by the Industrial Accident Board; that since the trial court's jurisdiction in workmen's compensation cases is appellate and not original in nature, and no claim for total permanent disability was or could have been submitted to or passed upon by the Board, it was error for the trial court to render judgment for total permanent disability. Appellant presents these first five points jointly and they will be so considered here.
The appellant presents a most able and logical argument in support of its conclusion that the trial court was without jurisdiction to hear and determine Goines' suit for total and permanent disability. It begins with the rule of law announced in the case of Latcholia v. Texas Employers Insurance Ass'n, 140 Tex. 231, 167 S.W.2d 164, 167, in which the opinion states, in discussing the effect of Section 13 of Article 8306 of our Workmen's Compensation Statute: "* * * that statute negatives the right of a minor employee to institute and prosecute a claim for compensation for total and permanent incapacity in his own name." In its argument it follows the above statement with the ruling in the case of Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205, 207, which was that "the district court has no jurisdiction to determine a claim for compensation arising under the Workmen's Compensation Act until and unless the Industrial Accident Board has first passed upon such claim." In the Choate case the claimant before the Board had specifically limited the extent of his claim before the Board to a specific injury and on appeal to the courts he...
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