Texas Employers' Ins. Ass'n v. Neatherlin
| Decision Date | 19 September 1930 |
| Docket Number | No. 723.,723. |
| Citation | 31 S.W.2d 673 |
| Parties | TEXAS EMPLOYERS' INS. ASS'N v. NEATHERLIN.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Fisher County; M. S. Long, Judge.
Suit by J. A. Neatherlin against the Texas Employers' Insurance Association to set aside an order of the Industrial Accident Board refusing compensation. From a judgment in favor of claimant, insurer appeals.
Affirmed.
Harry P. Lawther, Shelby S. Cox, and Frank F. Taylor, all of Dallas, for appellant.
Smith & Smith, of Anson, for appellee.
J. A. Neatherlin, an employee of Texas Cement Plaster Company, suffered an injury resulting in hernia. After proper notice and claim, the Industrial Accident Board refused to award compensation on the ground that the condition of which he complained was one of long standing. Within due time he filed suit in the district court of Fisher county to set aside the award and recover compensation. Upon the trial of the case he was awarded the sum of $4,736.23, less 6 per cent. discount, as for a total permanent incapacity. Texas Employers' Insurance Association, the insurance carrier, has appealed.
The first three points presented for determination relate to the same matter. It is insisted first that the court was without jurisdiction to render judgment for appellee because there was no competent proof or testimony that he had given notice to the Industrial Accident Board, within the time prescribed by law, of his unwillingness to abide the decision of the board. It is next contended that the court, for the same reason, erred in refusing to instruct a verdict for appellant, and then, further, that the court erred in admitting in evidence, over the objection of appellant, a certain certificate of a member of the Industrial Accident Board, as follows:
The instruments referred to in the certificate were: (1) Appellee's notice of injury; (2) claim for compensation; (3) additional claim for compensation; (4) order of the Industrial Accident Board; (5) appeal from order of said board. The statement of facts discloses that each of said instruments were first separately introduced in evidence and afterwards said certificate was offered and admitted in evidence. The notice of appellee to the board of his intention not to abide its decision, as it appears in the statement of facts, is preceded by the following:
"Mr. Smith (Attorney for Appellee): Then we offer in evidence the appeal from the final order and ruling of the Board, which was received by the Board on September 23rd, 1929."
Upon this instrument, as it appears in the statement of facts, is the following notation:
"(Industrial Accident Board
Received September 23rd, 1929
State of Texas.)"
No objection appears to have been made to said notice of appeal nor to the notation thereon when offered in evidence, but, after all of said instruments were admitted in evidence and the general certificate of Mrs. Espa Stanford was offered, appellant objected to the certificate "because the statements in said certificate are hearsay and not the best evidence." Upon said record of proceedings it is contended that the following portion of said certificate was subject to the objection that it was hearsay, namely: "And I further certify that said instruments were received and filed in this office on the dates shown by the `receiving stamp' appearing on the face thereof." The argument is that it was no part of the official duty of a member of the Industrial Accident Board to certify as to the time that instruments were received in the office, and therefore the fact that they were received at a certain time could not be proved by a certificate,...
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