Texas Employers' Ins. Ass'n v. Davies

• Decision Date: 02 May 1928
• Docket Number: (No. 3016.)
• Citation: Texas Employers' Ins. Ass'n v. Davies, 6 S.W.2d 792 (Tex. App. 1928)
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DAVIES.
• Court: Texas Court of Appeals

6 S.W.2d 792

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

(No. 3016.)

Court of Civil Appeals of Texas. Amarillo.

May 2, 1928.

Rehearing Denied May 30, 1928.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by the Texas Employers' Insurance Association against Walter Davies to set aside an award of the Industrial Accident Board.Cross-action by the defendant.From the judgment, the plaintiff appeals.Reversed and remanded.

Leachman & Dardere, of Dallas, and Wilson & Randal and J. I. Kilpatrick, all of Lubbock (S. P. Sadler, of Dallas, of counsel), for appellant.

Vickers & Campbell and Walter F. Schenck, all of Lubbock, for appellee.

HALL, C. J.

The appellant, hereinafter called the association, filed this suit in the district court of Lubbock county, against the appellee Davies, and his attorneys, Vickers, Campbell & Schenck, to set aside an award of the Industrial Accident Board dated May 2, 1927, which gave compensation to Davies as an employee of James T. Taylor, for total incapacity in consequence of injuries sustained by Davies while engaged in the course of his employment for a period of 111 weeks at $20 per week, and for permanent, partial incapacity of 80 per cent. on account of injuries to his leg, at the fixed rate of $20 per week, beginning April 20, 1927, and continuing thereafter for the full period of 89 weeks, less attorneys' fees ordered paid to Vickers, Campbell & Schenck.

The petition alleges that the court had jurisdiction of the amount involved and of the parties; that the association was engaged in the compensation insurance business under the laws of Texas, and under the Workmen's Compensation Law(Rev. St. 1925, arts. 8306-8309); that an award had been made by said board in favor of compensating appellee, from which it gave notice of appeal, and that this suit was filed in the required time.It is further alleged that — "Said Walter Davies claims compensation before said Industrial Accident Board, and is now claiming compensation in an amount within the jurisdiction of the district court."

The appellee answered, alleging that appellant was not entitled to have the award of the board set aside; that it had no right to have said award declared illegal; and that compensation was due him from the association, which compensation had only been paid in part.He further alleged, in the nature of a cross-action, that appellant association was engaged in such compensation business and was an insurer of James T. Taylor, under said law, who was the employer of appellee; that appellee was injured in the course of his employment March 5, 1925; that his injuries were permanent and they totally incapacitated him to do manual labor.He set out in detail the nature and extent of his injuries, and alleged that they disabled him from doing the labor he was accustomed to and qualified to do.He alleged that his earning capacity before the injury was $48 per week, and that he had worked for several years at such wages as a master mechanic, and prayed for compensation at the rate of $20 per week for total permanent disability for a period of 401 weeks, less the sum of $1,880, which appellant had paid him.He further asked that his compensation be paid him in a lump sum, less the legal discount, for the reason that hardship and injustice would result if such payment was not made in a lump sum.

In the alternative, he alleged that he had been permanently injured and totally incapacitated for 111 weeks, which was followed by partial incapacity for a period of 290 weeks, and that 60 per cent. of the difference between his earnings capacity, prior to his injury and since, amounted to more than $20 per week, and prayed, in the alternative, that he recover at the rate of $20 per week for 111 weeks on account of his total incapacity and for the same sum during a period of 290 weeks, on account of partial incapacity following said total incapacity.

By a supplemental petition, the association, in addition to general demurrer and a general denial, alleged that Davies was totally incapacitated for only 52 weeks, and thereafter was partially incapacitated; that his injury was confined to one leg below the knee, and that he received no other injuries; and that whatever other injuries, if any, he received only partially incapacitated him after the 52 weeks.

In response to issues submitted, the jury found: (1) That Davies suffered a permanent and total incapacity for work not only from the date of his injury on March 5, 1925, to June 1, 1926, as admitted by appellant, but from and after June 1, 1926, as the proximate result of such injuries; and (2) that there will result a manifest hardship and injustice to him if his compensation is not paid him in a lump sum.

The first contention to be considered is that the court erred in overruling the association's demurrer to the cross-action filed by the appellee, because it failed to allege that Davies had given notice of his injury to his employer or to the association within 30 days after the happening of the injury, and contained no allegations excusing such failure; because he failed to allege that he had made claim to the plaintiff within 6 months after his injuries and had given notice to the Industrial Accident Board within 30 days after the injury, or to allege facts excusing such failure; that he had made claim for compensation to said board within 6 months after the happening of the injury, or facts excusing said failure, and did not allege the basis for computing his compensation by stating his weekly wage.

Revised Statutes 1925, art. 8307, § 4a, makes it the duty of the injured claimant to give the association or the subscriber notice of his injuries within 30 days after the happening thereof, and expressly provides that failing to give such notice, no proceeding for compensation shall be maintained.The same inhibition applies when no claim for compensation has been made within the 6 months, as provided in that section.It is further provided, however, that for good cause shown, the board may waive strict compliance with such limitations upon the claimant's right to maintain his action.

In the instant case, Davies neither alleged the giving of the notice, the filing of his claim, nor that such prerequisites were waived by the board.These facts were not alleged by the appellant.We are therefore of the opinion that the appellant's general demurrer to the appellee's cross-action should have been sustained.

Section 5 of this article of the statute declares that when either party brings the controversy into the courts, the trial there shall be de novo, and that the burden of proof shall be upon the claimant.The rule that every issuable fact necessary to be proven must be alleged is fundamental, and this is especially true when the facts to be proven are necessary to show the jurisdiction of the court.

This question of the sufficiency of the pleadings seems to be definitely settled in the case of Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, which arose under the Workmen's Compensation Act.In her pleading, Mrs. Wadley made certain allegations showing a necessity for a receivership, but there was no allegation to the effect that notice had not been given of refusal to abide by the award, and none to the effect that suit had not been filed to set the award aside.In discussing the sufficiency of the pleadings, Judge Cureton said:

"This suit arises out of a workmen's compensation proceeding, and it is therefore in derogation of the common law.The rights to be enforced, and all the remedies provided therefor, are purely statutory, as distinguished from the common-law rights and remedies. * * *

"The general rule is that where the...