Traders & General Ins. Co. v. Huntsman, 13852.

• Decision Date: 20 January 1939
• Docket Number: No. 13852.,13852.
• Citation: 125 S.W.2d 431
• Parties: TRADERS & GENERAL INS. CO. v. HUNTSMAN.
• Court: Texas Court of Appeals

125 S.W.2d 431

TRADERS & GENERAL INS. CO. v. HUNTSMAN.

No. 13852.

Court of Civil Appeals of Texas. Fort Worth.

January 20, 1939.

Rehearing Denied March 3, 1939.

Appeal from District Court, Montague County; Earl P. Hall, Judge.

Suit under the Workmen's Compensation Act by the Traders & General Insurance Company to set aside an award of the Industrial Accident Board in favor of O. J. Huntsman, claimant, wherein claimant filed a cross-action. From a judgment for claimant in a lump sum, plaintiff appeals.

Affirmed.

Lightfoot, Robertson & Gano and Dan P. Johnston, all of Fort Worth, for appellant.

Ratliff & Ratliff, of Haskell, and Donald & Donald, of Bowie, for appellee.

SPEER, Justice.

This appeal involves a construction of the Workmen's Compensation Act, Articles 8306, 8307 and 8309, R.C.S., and the various sections and subsections thereunder. Vernon's Ann.Civ.St. arts. 8306, 8307, 8309.

O. J. Huntsman was the employee to whom we shall refer as appellee. Traders & General Insurance Company was the insurer, to which we will refer as appellant, and Monty Staniforth, Jr., and F. T Johnson were the employers, to whom we will refer as such.

Within thirty days from the date appellee claims to have received an injury, while in the course of his employment, he gave notice thereof and filed claim for compensation. Insofar as is necessary to give the contents of these instruments, they were each filed with the Industrial Accident Board, as of March 13th, 1937, and stated appellee had received an injury on February 19th, 1937, while in the discharge of his duties to his employers. The notice contained, among other things, this clause: "State part of body injured: (Answer) Right leg and knee. Nature of injury as near as possible: (Answer) Injured muscles and ligaments in and above knee joint."

In the claim for compensation, this was said: "State part of body injured and nature and extent of injury: (Answer) Right leg and knee. Injured muscles and ligaments at and above knee. * * * Length of time regularly employed in same employment for this employer previous to injury: (Answer) One day."

On August 10th, 1937, the Industrial Accident Board entered its order containing jurisdictional findings and that appellee had an average weekly wage rate of $29.42, and was entitled to compensation at the rate of $17.65 per week, and that on July 19th, 1937, appellee "suffered injuries in course of his employment resulting in his total incapacity for performance of labor for an indefinite period in the future, not exceeding 200 weeks." The award ordered appellant to pay to appellee the amount found to be due each week for an indefinite period in the future not to exceed 200 weeks, unless changed by a subsequent award of the Board. The following additional provision is found in the award: "O. J. Huntsman is ordered to submit to surgical operation at the hands of a surgeon to be agreed upon by and between he and Traders & General Insurance Company on a date not earlier than September 20th, 1937, and not later than October 20th, 1937, unless operation is performed on an earlier date by agreement. Such operation shall be performed at a hospital to be designated by the operating surgeon, and the reasonable expense incident shall be paid by the Traders & General Insurance Company."

On August 28th, 1937, less than twenty days after the entry of the award by the Board, appellant (Traders & General, the insurer) gave written notice to the Industrial Accident Board it was not willing and did not consent to abide by the action of the Board in making the award on August 10th, 1937, and said that it would appeal from said award to a court of competent jurisdiction. It did thereafter file its petition in the District Court of Montague County, Texas, on September 11th, 1937, by the terms of which it plead, among other things, that the Industrial Accident Board did enter its final award in said matter on the date hereinabove shown and alleged all other necessary jurisdictional matters. Prayer was for notice and a judgment setting aside and holding for naught the award of the Board.

Appellee (Hunstman, the employee) replied to appellant's action by general denial and by cross action, alleging all necessary jurisdictional matters. He alleged that he sustained the injuries complained of at the date shown in the claim filed, while in course of his employment. That the injuries mentioned in his claim so filed (which as we have shown were to his leg and knee and the ligaments above and below the knee) had affected other parts of his body, setting out specifically and in much detail the parts of the body so affected, the manner and extent thereof, which allegations are unnecessary to be repeated here, and that because of the injuries he was totally and permanently incapacitated to perform manual labor, such as he had previously been able to and did perform. He, too, plead the finality of the Board's award and asked that it be set aside and that he be allowed compensation for total and permanent disability. He further alleged his average weekly compensation should be based upon his average weekly wage of $5.10 per day, seven days in the week, and that he "was employed steadily the year around at such or similar employment at the average wage of at least $5.10 per day." In the alternative, he alleged that there were other employees engaged in the same employment in that and neighboring vicinities, who had worked for a full year next preceding the time of his alleged injuries, who received an average weekly wage of $5.10 per day, and yet in another alternative, he alleged that if he be mistaken in the two former allegations concerning average weekly wages, that he was entitled to compensation based on such average weekly wage, to be computed in such manner as may seem just and fair to all parties. Other allegations set out that he had employed counsel to represent him and a state of conditions which would entitle him to a lump sum settlement.

Appellant answered the cross action by general denial and special pleas to the effect that the claim filed by appellee with the Industrial Accident Board was not such one as would authorize the Board to award compensation for an amount in excess of $500, and for that reason the district court was without jurisdiction to hear and determine his cross action. It further alleged that no final award had been made by the Board, in that said award did not show upon its face, nor was there any proof, that said award was passed or acted upon by any member or members of the Board, especially by a majority or quorum thereof, and such alleged award was of no binding force and effect, as contemplated by law.

Thereafter, on November 22nd, 1937, appellant filed its motion, asking that it be allowed to take a non-suit and that its suit be dismissed.

The foregoing motion being overruled by the court, appellant filed a further plea to the jurisdiction of the court to hear appellee's cross action, alleging that the award of the Board was not final, (a) because it was for an indefinite period of time, and (b) because the award showed upon its face that a surgical operation had been ordered by the Board (in terms above shown by us) and that no operation had ever been performed and therefore the Board retained jurisdiction and could make no final award until the surgery was done.

Appellee replied, alleging the finality of the award, that the attempt of the Board to order surgery was void and of no effect, for (a) it had no legal authority to make such an award, (b) that the attempted award, provided that an operation be performed not earlier than September 20th, 1937, and not later than October 20th, 1937, by a surgeon to be agreed upon by the parties, and (c) the appellant declined to abide by the award so made, and declared its intention to file suit prior to the earliest date named in which an operation was to be performed. He further alleged that he did, prior to the institution of the suit by appellant, attempt to agree with it upon an operation, but its representatives would not agree unless it could name the physician, and the hospital; whereupon, he withdrew his offer to undergo such operation.

The motions of appellant to be permitted to take a non-suit and to dismiss its action, as well also its plea to the jurisdiction of the court, were overruled, to which rulings it excepted.

A jury was empaneled and special issues submitted by the court, all being answered favorably to appellee, the court entered judgment in favor of appellee for lump sum; exception was taken and this appeal was properly perfected.

By its propositions one to seven, appellant complains of the action of the trial court in refusing to sustain its motion for non-suit and dismissal of the case, and thereafter entertaining jurisdiction of this cause.

At the time appellant made the motion for non-suit and to dismiss, it was the active plaintiff in the case, and if no cross action had at that time been filed by appellee, in which he sought affirmative relief, there is no question but that its motion should have been sustained. Article 2182, R.C.S. reads: "At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced."

Omitting the formal parts, appellant's motion was in these words: "Now comes the plaintiff, Traders & General Insurance Company, in the above entitled and numbered cause and states to the court that it does not desire to further prosecute its suit herein and desires to take a non-suit, and moves the court to dismiss its suit herein against the defendant at the cost of said plaintiff."

The court properly overruled the motion under the circumstances then before him. If no cross action had been...