Texas Employers' Ins. Ass'n v. Lovett

• Decision Date: 19 June 1929
• Docket Number: (No. 7368.)
• Citation: 19 S.W.2d 397
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. LOVETT et al.
• Court: Texas Court of Appeals

19 S.W.2d 397

TEXAS EMPLOYERS' INS. ASS'N v. LOVETT et al.

(No. 7368.)

Court of Civil Appeals of Texas. Austin.

June 19, 1929.

Rehearing Denied July 17, 1929.

Appeal from District Court, Travis County; George Calhoun, Judge.

Proceeding under the Workmen's Compensation Law by Mrs. G. W. Lovett and others, claimants, opposed by the Texas Employers' Insurance Association, insurance carrier. The Industrial Accident Board awarded compensation, and the insurance carrier removed the case to the district court seeking to set aside the award. From the judgment, the insurance carrier appeals. Affirmed in part, and in part reversed and remanded, with instructions.

Wood & Wood, of Austin, for appellant.

S. L. Staples and Harris & Harris, all of Austin, for appellees.

BLAIR, J.

This is a workmen's compensation case. G. W. Lovett died from an injury received in the course of his employment as manager of Farmers' & Ginners' Cotton Oil Company, the subscriber, under appellant's insurance policy in suit. Appellees, the widow and minor daughter of deceased and their attorney, S. L. Staples, were awarded weekly compensation by the Industrial Accident Board. Appellant duly removed the case to the district court seeking to set aside the award; but on trial the verdict and judgment were for appellees for the lump sum of $2,951.37, apportioned equally between them; hence this appeal.

Appellant contends that the court was without jurisdiction to determine the case, because appellees neither alleged nor proved that notice of the injury was given to the association or subscriber within 30 days, nor that claim for compensation was filed with the Industrial Accident Board within six months after the death of the employee, as required by article 8307, Rev. St. 1925. Neither contention is sustained.

The provision with reference to giving notice of the injury within 30 days has no application "in case of death of the employee." This conclusion is not only sustained by the language of the statute, but also by the fact that the heirs or legal representatives have no claim for compensation until the death of the employee, which might not occur within 30 days after the injury. Georgia Casualty Co. v. Ward (Tex. Civ. App.) 220 S. W. 380.

With reference to the sufficiency of the pleadings, appellees alleged in substance that deceased received an injury in the course of his employment which resulted in his death; that notice of his death was given to the association and subscriber, and a claim for compensation filed with the Industrial Accident Board, "within the time and in the manner required by law"; that the board made an award in favor of appellees; and that appellant appealed, seeking to set aside the award. Appellant made no attack upon these pleadings. It filed a general demurrer which does not appear to have been presented to, or acted upon, by the trial court. Therefore the question of the sufficiency of the pleadings in the respect complained of is not raised. But should the question of jurisdiction be regarded as fundamental, and, conceding for the purposes of this decision that appellees' allegation that they gave notice of "the death" instead of "notice of the injury" is insufficient standing alone, still this case does not fail because of the allegations contained in appellant's petition.

In its petition to set aside the award, appellant alleged all jurisdictional facts, with the further allegation that appellees claimed compensation before the board. When these allegations are considered with the allegations of appellees that they claimed and were awarded compensation by the board, they are broad enough as against a general demurrer to show compliance with the statute with respect to notice and filing of claim. Or, as stated by the Commission of Appeals in the case of Davies v. Tex. Employers' Ins. Ass'n, 16 S.W.(2d) 525:

"Upon a general demurrer, the allegations of the adversary party may be looked to in aid of the pleading attacked. The allegation that Davies claimed compensation before the board by reasonable intendment means that he claimed compensation in a lawful manner; that is, in the manner required by statute. This could only be after notice, and upon claim duly presented to the board within the statutory time, or for good cause a waiver by the board of those requirements."

We also note in this connection that in the Davies Case the commission indicates that the requirements as to notice of injury and filing of claim may no longer be regarded as jurisdictional; but that they "are merely statutes of limitations, to be pleaded in defense."

The proof is also sufficient to sustain the judgment on the issue of notice and filing of claim. Appellees offered in evidence their claim for compensation filed with the Industrial Accident Board duly authenticated by the secretary of the board. It shows to have been filed within six months after the death of the employee. The final award of the board was also introduced in evidence. Mrs. Lovett testified without contradiction that in February, 1928, following the death of her husband October 14, 1927, which was also the day he received the injury, appellant's agent and the manager of the subscriber interviewed her with reference to the death of her husband, which was within six months after the death of the employee. This shows knowledge of the injury and death on the part of both the association and subscriber, and under provision of the statute where either the association or subscriber has notice of the injury no further notice is necessary.

Appellant further contends that the evidence wholly fails to show that G. W. Lovett received such an injury while in the course of his employment as is compensable under the Workmen's Compensation Act (Rev. St. 1925, arts. 8306-8309), in that no harm or damage was shown to have been done to "any portion of the physical structure of the body of said G. W. Lovett." We do not sustain the contention.

G. W. Lovett was shown to have been afflicted for several years prior to his death with an organic heart disease, known in medical terms as "angina pectoris," which disease and its effect were described by an expert witness as follows:

"Angina is a sclerosis of the heart and the passage of the aorta; in other words, a diseased condition has entered into that heart and also into that passage, that has produced a hardening and in those conditions you produce a line of restriction—a narrowing. When you throw into that heart pressure, dilatation is not there, but you carry the response, and consequently the interpretation is passed to the nerve coming from the cardiac...