Texas Employers' Ins. Ass'n v. Schoeppel
| Decision Date | 04 October 1928 |
| Docket Number | (No. 1719.) |
| Citation | 10 S.W.2d 405 |
| Parties | TEXAS EMPLOYERS' INS. ASS'N v. SCHOEPPEL. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.
Suit by the Texas Employers' Insurance Association against Walter Schoeppel to set aside an award of the Industrial Accident Board. Judgment sustaining the award, and plaintiff appeals. Reversed and remanded.
Morris, Sewall & Morris, of Houston, for appellant.
Rose & Johnson, of Port Arthur, for appellee.
O'QUINN, J.
This is an appeal from a judgment of the district court of Jefferson county sustaining an award made by the Industrial Accident Board in favor of appellee. Walter Schoeppel, appellee, on or about November 8, 1925, was employed by the Spence & Howe Construction Company as a laborer engaged in pile driving, on which date he received the injury for which compensation was awarded. The Spence & Howe Construction Company carried insurance under the Workmen's Compensation Act with appellant.
Appellant's first and second propositions are based upon its first and second assignments of error, which challenge the action of the court in overruling its general demurrer to appellee's petition in cross-action for compensation, and its third and fourth propositions are based upon its third and fourth assignments of error, which assert that the court erred in refusing to give its special requested charge for an instructed verdict in its favor. As these raise the same question, they will be considered together.
It is insisted that the court should have sustained appellant's general demurrer, and should have given appellant's special requested charge for an instructed verdict in its favor, because appellee's petition in cross-action failed to state a cause of action, or, in other words, said petition failed to allege facts necessary to give the court jurisdiction to hear and determine the matter, in that said petition failed to allege that claimant, appellee, gave notice of his injury to his employer or to the insurance association within 30 days after the occurrence of the injury, or that he filed his claim for compensation before the Industrial Accident Board within six months after the happening of his injury.
We think the assignment should be sustained. Article 8307, section 4a, R. C. S. 1925, provides that no proceeding for compensation for injury under the Workmen's Compensation Act shall be maintained unless notice of the injury shall have been given to the association or subscriber within 30 days after the happening of the injury, and unless a claim for compensation with respect to such injury shall have been made within 6 months after the occurrence of the injury. Article 8307, § 5, provides that any party to a proceeding before the Industrial Accident Board who is not willing and does not consent to abide by the final ruling and decision of said board shall, within 20 days after the rendition of the final ruling and decision by said board, file with said board notice that he will not abide by said final ruling and decision, and shall, within 20 days after giving such notice, bring suit in the county where the injury occurred to set aside such final ruling and decision, and that when such suit is brought the trial shall be de novo, and that the burden of proof shall be upon the party claiming compensation. Under the law, it makes no difference which of the parties to the proceedings before the board takes an appeal to the district court; there the trial is de novo and the burden is on the claimant of compensation. In other words in all trials in the courts of cases of this character, the claimant of compensation is made the plaintiff, and as such must plead and prove the matters required by the law to give the court jurisdiction and to sustain the judgment there rendered. That being true, in order to sustain the jurisdiction of the district court in rendering the judgment it did render in this case, the plaintiff, that is, the claimant for compensation, Walter Schoeppel, appellee here, must have alleged and proved, (a) notice to the subscriber or the association of the injury within 30 days after the same happened, and (b) a claim for compensation by the injured party to the Industrial Accident Board within 6 months after the occurrence of such injury, because without such allegations and proof he could not maintain his cross-action for compensation.
"The district court, in enforcing the provisions of the Workmen's Compensation Act (), is a court of limited jurisdiction — the remedies for such enforcement being derived from the statutes, the statutory provisions are mandatory and exclusive and must be complied with in all respects, or the action is not maintainable." Texas Employers' Ins. Ass'n v. Nelson (Tex. Civ. App.) 292 S. W. 652.
"Each step in the progress of the maturity of a claim from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies." Mingus v. Wadley, 115 Tex. 551, 558, 285 S. W. 1084, 1087.
The pleading and the evidence in the instant case are both deficient. It is not alleged by either appellant or appellee that notice of the injury was given or that claim for compensation for the injury was ever made. Neither is there any evidence as to such being the case. While we hold that it was incumbent upon appellee as compensation claimant to both allege and prove these facts, yet if the notice of injury and claim before the Industrial Accident Board for compensation had been alleged by appellant, it would have inured to the benefit of appellee, and he could have made proof of same; but as no such pleading was made by either party, no such proof could have been made, and, in fact, none was attempted to be made. These are jurisdictional matters and must be pleaded and proved in order to give the court jurisdiction to hear and render judgment in the matter. If for any reason notice of the injury was not given, nor claim for compensation within six months after the occurrence of the injury was made, then the reason for not giving the notice and for not making the claim for compensation should have been pleaded by appellee. Texas Employers' Ins. Ass'n v. Martin (Tex. Civ. App.) 296 S. W. 639; Texas Ins. Ass'n v. Davies (Tex. Civ. App.) 6 S.W.(2d) 792.
Under the statute, article 8307, § 4a, notice of injury must be given, or if notice has been waived formally or in effect, then the waiver must be pleaded and proof of waiver made. Texas Employers' Ins. Ass'n v. Nelson (Tex....
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