Watts v. Texas Employers' Ins. Ass'n.

• Decision Date: 19 April 1924
• Docket Number: (No. 10590.)
• Parties: WATTS et al. v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Court of Appeals

264 S.W. 186

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

(No. 10590.)

Court of Civil Appeals of Texas. Fort Worth.

April 19, 1924.

Rehearing Denied June 14, 1924.

Appeal from District Court, Clay County; H. R. Wilson, Judge.

Proceeding under the Workmen's Compensation Act by W. T. Watts, claimant, and his attorney, opposed by the Texas Pipe Line Company, employer, and the Texas Employers' Insurance Association, insurer. The Industrial Accident Board awarded compensation and attorney's fees, and insurer sued to set aside award. From judgment for insurer, claimant and his attorney appeal. Affirmed.

Stine & Stine and R. Loftin, all of Henrietta, for appellants.

Lawther, Pope & Leachman, of Dallas, for appellee.

DUNKLIN, J.

W. T. Watts, a builder by trade of steel oil tanks, was employed by the Texas Pipe Line Company to assist in the construction of one of its oil tanks. According to allegations in his pleading, while he was tightening a rivet with a wrench, sitting on one foot which was doubled under him, and owing to a defect in the rivet and nut, the wrench slipped, and as a consequence he fell over and injured his hip and lower part of his spinal column and the tendons and muscles of his back and left leg and knee. According to further allegations, after such injury, he continued to work at lighter work for several days, at the expiration of which period he was compelled to go to bed. According to further allegations he suffered great pain from his injury, which ultimately proved to be of such a serious nature as to permanently incapacitate him to perform manual labor.

The Texas Pipe Line Company was a subscriber to the provisions of the Workmen's Compensation Act, as embodied in chapter 5, tit. 77, of Vernon's Texas Civil Statutes, 1918 Supp. (articles 5246 — 1 to 5246 — 91), and procured insurance from the Texas Employers' Insurance Association against injuries occuring to its employees while engaged in its service.

Within the time prescribed by the act, W. T. Watts filed with the state Industrial Accident Board, as provided by that act, his claim for full compensation for the period of 400 weeks at the rate of $15 per week, upon allegations that he was totally and permanently incapacitated by reason of his injury to perform any further labor. R. Loftin also claimed attorney's fee, as provided by statute, for representing Watts.

On January 13, 1922, the Industrial Accident Board awarded Watts compensation for his injury and Loftin attorney's fees for representing him, to be paid by the Texas Employers' Insurance Association, the insurer. Thereafter, on January 20, 1922, the insurance association notified the Industrial Accident Board and Watts and Loftin, his attorney, that it would not abide by the decision of the Accident Board. Pursuant to that notice the insurer filed this suit in the district court of Clay county, in which county the alleged accident occurred, praying for a decree of the court setting aside and holding for naught the decision of the Industrial Accident Board. It was alleged in that petition that Watts was claiming compensation on account of his alleged injury at the rate of $15 per week, payable weekly for a period not longer than 400 weeks, and that his attorney, Loftin, was claiming from the plaintiff an additional sum equal to 15 per cent. of the first $1,000 to be paid to Watts, plus a sum equal to 10 per cent. on all sums paid to Watts in excess of $1,000.

In reply to the petition, the defendants Watts and Loftin filed an answer alleging all the facts necessary under the Workmen's Compensation Act to entitle Watts to compensation for a period of 400 weeks at the rate of $15 per week and entitle Loftin, his attorney, to recover attorney's fee in addition, at the rate and in the amount which plaintiff alleged was claimed.

The case was tried before a jury, who, in answer to special issues, found that Watts sustained personal injury in the course of his employment by the Texas Pipe Line Company, which resulted in his total incapacity to work for a period of 12 weeks and in a partial incapacity to work for a period of 40 weeks. The jury further found that $7 was the average daily wage earned by an employee of the same class as W. T. Watts, while working substantially the whole year immediately preceding the injury in the same or similar employment and in the same or neighboring place, and that $6 was the average weekly wage earned by such a person during the period of time when Watts was partially incapacitated to work, which partial incapacity was 60 per cent. of his total capacity. There was a further finding that the accident so suffered by Watts was the proximate cause of both his total and partial incapacity to perform labor.

But the jury also found that Watts did not notify the Texas Pipe Line Company within 30 days after December 22, 1921 (which was the date Watts alleged he was injured), that he had sustained a personal injury to his hip and back while working in the course of his employment.

Upon the verdict so returned, the court entered a judgment setting aside the prior award of compensation to Watts by the Industrial Accident Board, and adjudged and decreed that the defendants Watts and Loftin take nothing against the Texas Employers' Insurance Association. From that judgment the defendants have appealed.

Appellants have challenged the finding of the jury and judgment of the court based thereon, to the effect that Watts did not notify the insurer of his injury within the period of 30 days after it occurred, on the ground that there was no evidence to support that finding, and on the further ground that the evidence showed that his failure to give such notice was excusable by reason of his physical suffering which confined him to his bed, and that the Texas Pipe Line Company in fact knew of his injury and physical condition resulting therefrom and after the day he was injured.

There was abundant testimony to support the finding of the failure of Watts to give such notice within the period stated; in fact, the testimony introduced by the insurer would have supported a finding that Watts was not injured at all as a result of the alleged accident, but that the suffering and incapacity to labor of which he complained, was the result of rheumatism previously contracted.

It will be noted that the issue whether or not the failure of Watts to give such notice to the insurer was excusable was not submitted to the jury, nor requested by either party. In the absence of such finding by the jury, we must imply a finding by the trial judge adverse to appellants upon that issue, and we are unable to say that that finding is without support in the evidence, since there was testimony tending to show that after the alleged accident Watts continued to work, and that he made no claim that his suffering was due to the accident until after the expiration of the 30-day period, and in view of specific testimony that no such notice was given. It is further insisted that the award made by the Industrial Accident Board implied a finding by that Board that Watts showed good cause for not giving the notice within the 30 days and that such finding by the Board was conclusive and binding upon the trial court.

Appellants invoke the provisions of article 5246 — 43 of Vernon's Texas Civil Statutes, vol. 2, 1918 Supplement, which reads as follows:

"Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this act shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty (30) days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of same; or, in case of death of the employé or in the event of his physical or mental incapacity within six (6) months after the death or the removal of such physical or mental incapacity. Provided that for good cause the Board may, in meritorious cases waive the strict compliance with the foregoing limitations as to notice and the filing the claim before the board."

But the next succeeding article of the Statutes (5246 — 44) gives any interested party who does not consent to abide by the final decision of the Board the right to appeal to a court of competent jurisdiction, as was done in the present case, for a determination of the issues involved. That article further specifically provides that if such suit is...