Traders & General Ins. Co. v. Belcher

• Decision Date: 24 February 1939
• Docket Number: No. 1862.,1862.
• Citation: 126 S.W.2d 35
• Parties: TRADERS & GENERAL INS. CO. v. BELCHER.
• Court: Texas Court of Appeals

126 S.W.2d 35

TRADERS & GENERAL INS. CO. v. BELCHER.

No. 1862.

Court of Civil Appeals of Texas. Eastland.

February 24, 1939.

Rehearing Denied March 24, 1939.

Appeal from District Court, Rusk County; Paul G. Brown, Judge.

Action by W. D. Belcher against the Traders & General Insurance Company, to set aside an award of the Industrial Accident Board under the Workmen's Compensation Act. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed and remanded.

Lightfoot, Robertson & Gano, of Fort Worth, and Collins & Collins, of Lufkin, for appellant.

Roy W. McDonald, of Dallas, George W. McHam, of Wichita Falls, and Bailey & Shaeffer, of Dallas, for appellee.

GRISSOM, Justice.

This is a Workmen's Compensation case instituted by W. D. Belcher against the Traders & General Insurance Company. In accord with a jury verdict, judgment was rendered for plaintiff for the recovery of the maximum amount authorized for total and permanent disability. From that judgment defendant has appealed.

Defendant contends, by its first and second propositions, that the trial court should have sustained its plea to the jurisdiction and dismissed the case because plaintiff's claim for compensation filed with the Industrial Accident Board did not show, in dollars and cents, that it was a claim for an amount within the jurisdiction of the district court, nor were facts alleged therein from which such amount could be determined. Since the preparation of the briefs in this case that question has been decided by our Supreme Court adversely to defendant's contention. In Booth v. Texas Emp. Ins. Ass'n, Tex.Com.App., 123 S.W.2d 322, 331, the question is answered in an opinion by Judge Smedley, as follows: "It is not necessary, either for the purpose of showing jurisdiction of the board or as predicate for jurisdiction of the court in which suit may be filed to set aside the board's award, that the claim filed with the board state the amount claimed by the employee or facts from which such amount can be definitely determined."

Also, see Aetna Casualty & Surety Co. v. Ware, Tex.Com.App., 123 S.W.2d 332; Federal Underwriters Exchange v. Cost, Tex.Com.App., 123 S.W.2d 332; Robinson v. Commercial Standard Ins. Co., Tex.Com. App., 123 S.W.2d 337.

Defendant, by its third and fourth propositions, contends that the trial court erred in refusing to instruct the jury to return a verdict for defendant, on its motion duly and timely filed and presented, and in refusing to grant the defendant's motion for a new trial, because there was no proof that plaintiff's employer, or the defendant, who was the employer's insurance carrier, had knowledge or were given notice of plaintiff's injury within thirty days after the happening thereof.

Plaintiff alleged that his employer had immediate notice of the injury and that, within thirty days after he received his injury, he gave written notice thereof to defendant. Defendant asserts in its brief that there was no proof made that plaintiff's employer, or this defendant, had actual knowledge of plaintiff's injury, or that either of them were given notice of his injury within thirty days from the happening thereof. This statement is not refuted by plaintiff, but, in answer thereto, he contends that since defendant filed a plea to the jurisdiction of the court "which set up that both the notice of injury and claim for compensation were filed on the 10th day of April 1935 with the Board" and the substance of the notice of injury given to the board therein set out, it was unnecessary for plaintiff to make such proof, since, plaintiff contends, such essential facts were thereby admitted by defendant. In its plea to the jurisdiction, defendant alleged that "plaintiff, on April 10, 1935, filed with the Industrial Accident Board of the State of Texas a notice of injury."

Article 8307, sec. 4a, Vernon's Ann.Civ. St., provides: "Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof."

The latter part of said statute provides that "For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice * * *." Plaintiff offered in evidence its exhibit No. 2. Its introduction in evidence for any other purpose than to show jurisdiction of the court was objected to by defendant. It was then so limited by the court and admitted in evidence for such purpose only, to which action of the court plaintiff excepted. Plaintiff now contends that its exhibit No. 2 was admissible not only to show jurisdiction, but was also "admissible before the jury for the purpose of showing notice was given * * * within the time required by law." Plaintiff further contends that since said exhibit was admissible for the purpose of showing, and would have shown that notice of the injury was given within the time required by law, and since its introduction for such purpose was not permitted and, because of defendant's objection, defendant cannot now assume a different attitude from that which it took in the trial court, and defendant is, by reason of its said action in the trial court, estopped to assert that no proof was made by plaintiff of knowledge by or notice to plaintiff's employer or defendant of plaintiff's injury within thirty days, as required by Art. 8307, sec. 4a, supra.

Plaintiff's Exhibit No. 2 was apparently a printed form filled out by the plaintiff. It commenced:

                "Form 2      Employers' Liability Act
                           Notice of Injury
                       Industrial Accident Board
                             Austin, Texas
                

"Important: This notice must be made out in duplicate and each question carefully and correctly answered within thirty (30) days following infliction of injury, one copy to be mailed or delivered to the employer or his or its insurance carrier, and one copy to the Industrial Accident Board at Austin, Texas. This is to notify you that I suffered personal injury * * *."

Then followed a statement that plaintiff at the time and place and in the manner alleged in his petition sustained injuries therein described while he was employed by F. D. Jones Drilling Company, etc. It was signed by plaintiff and witnessed. It was dated April 9, 1935, and shows to have been received and filed by the Industrial Accident Board on April 10, 1935. Following the matters mentioned, sec. 4a of Art. 8307 was quoted. It was certified to by the secretary of the Industrial Accident Board.

In sec. 5 of Art. 8307, Vernon's Ann.Civ. St., the following provision is found: "The Industrial...