Zurich General Accident & Liability Ins. Co. v. Rodgers

• Decision Date: 28 October 1936
• Docket Number: No. 6982.,6982.
• Citation: 97 S.W.2d 674
• Parties: ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, v. RODGERS.
• Court: Texas Supreme Court

97 S.W.2d 674

ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., Limited, v. RODGERS.

No. 6982.

Supreme Court of Texas.

October 28, 1936.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit under the Workmen's Compensation Law by J. B. Rodgers against the Zurich General Accident & Liability Insurance Company, Limited, to mature an award of compensation by the Industrial Accident Board. To review a judgment of the Court of Civil Appeals [83 S.W.(2d) 713], affirming a judgment for plaintiff, the defendant brings error.

Judgments of the trial court and of Court of Civil Appeals reversed, and judgment entered against plaintiff in favor of defendant.

Shannon, Ochsner & Pheiffer, of Amarillo, for plaintiff in error.

L. B. Godwin and Kimbrough & Boyce, all of Amarillo, for defendant in error.

SHARP, Justice.

On November 21, 1932, the Industrial Accident Board awarded J. B. Rodgers $4 per week for 150 weeks against the Zurich General Accident & Liability Insurance Company, Limited, as compensation upon a claim theretofore filed by him under the Texas Workmen's Compensation Law (Vernon's Ann.Civ.St. art. 8306 et seq.). Both Rodgers and the insurance company filed notice of intention not to abide by the award. Thereafter Rodgers timely filed suit in the district court to set aside the award; to which the insurance company answered only by general demurrer and general denial. On February 17, 1934, without objection from the insurance company, Rodgers took a nonsuit, the suit was dismissed, and judgment was duly entered that the insurance company go hence without day and with its costs. Subsequent thereto Rodgers filed suit in the district court against the insurance company to mature the original award made by the Industrial Accident Board, and for a 12 per cent. penalty and attorney's fees. The cause was tried before the court without a jury, and judgment was rendered in his favor as prayed for. The Court of Civil Appeals affirmed the judgment of the trial court. 83 S.W.(2d) 713. Writ of error was granted.

This case is narrowed to one question for decision. Rodgers contends, and the Court of Civil Appeals so held, that a suit to set aside an award of the Industrial Accident Board is in the nature of an appeal, and operates only to suspend the award, and that when he, after instituting said suit to set aside the award, thereafter took a nonsuit, and the cause was dismissed without objection from the insurance company, such award again became in full force and effect, and subject to be enforced. On the other hand, the insurance company contends that the institution and prosecution of a suit to set aside an award of the Industrial Accident Board, in a court which acquires jurisdiction of the issues and parties thereto, nullifies such award.

The facts are undisputed. Rodgers had secured an award from the Industrial Accident Board, and both he and the insurance company gave notice of dissatisfaction with the award. In due time Rodgers filed suit in a court of competent jurisdiction to set aside the award made by the Industrial Accident Board, and the insurance company joined issue in said suit by filing a general denial and general demurrer. At a later date a trial was had before a jury. The evidence was closed and the charge of the court prepared, and exceptions to the charge were taken by both parties. Then Rodgers filed a motion to take a nonsuit, and the suit was dismissed. Thereafter the present case to mature the award and collect penalty and attorney's fees was filed. Judgment was rendered by the trial court, and affirmed by the Court of Civil Appeals, as above stated.

A decision of the question involves the construction of sections 5 and 5a, article 8307 Vernon's Ann.Civ.St. (Workmen's Compensation Law). The pertinent parts read as follows:

"Sec. 5. All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the Board. Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision and said Board shall proceed no further toward the adjustment of such claim, other than hereinafter provided. Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provision of this law and the suit of the injured employe or person suing on account of the death of such employe shall be against the association if the employer of such injured or deceased employe at the time of such injury or death was a subscriber as defined in this law. If the final order of the Board [is] against the association, then the association and not the employer shall bring suit to set aside said final ruling and decision of the Board, if it so desires, and the Court shall in either event determine the issues in such cause instead of the Board upon trial de novo and the burden of proof shall be upon the party claiming compensation. The Industrial Accident Board shall furnish any interested party in said claim pending in Court upon request free of charge, with a certified copy of the notice of the employer becoming a subscriber filed with the Board and the same when properly certified to shall be admissible in evidence in any Court in this State upon trial of such claim therein pending and shall be prima facie proof of all facts stated in such notice in the trial of said cause unless same is denied under oath by...