Georgia Casualty Co. v. Ward
220 S.W. 380
Tex. App.
1920
Check Treatment

*1 (Tex. appellant association,” and “the was within GEORGIA CASUALTY CO v. WARD et al.* Employers’ Liability Act, approved April 16, 1913. General c. (Vernon’s Sayles’ 1914, Ann. Civ. St. art. (Court of Civil of Texas. Texarkana. seq.). day 5246h et On the 2d of that month 11, March 1920. On Motion for Re- Ward, employs W. S. then an oil April hearing, 22, 1920.) injured company, was the course his employment by being struck On Motion on the head for by machinery a wrench thrown oil <&wkey;401Allegation 1. Master and servant — company’s plant. Dea, One said oil com- timely claim for essential. pany’s superintendent, present was at injuries In an action for to or death of occurred, plaintiffs afterwards, time employs, allege accident must that the claim day, for but on six months the same within caused a notice there- or, injury, death, after the action for within of to be sent to the Indus- required by death, six months after as Em- trial Accident created said act. ployers’ Liability Act, Ann. Civ. St. (Yernon’s Sayles’ § 4a compensa- Ward did not a claim for 1914, 524Sppp). art. provided tion as act until &wkey;>398'i-Suit day 1918. On that 2. Master he made such a claim on held not servant compensation” Employers’ “claim for appellant, and at the same within forwarded Liability Act. copy thereof to said board. There is noth- employe’s for an ing showing in the record action of compensation” death held not a “claim for kind board on the claim. This suit Employers’ Liability Act, (Vernon’s 4a§ April was commenced Ward 1918. He Sayles’ quiring 5246ppp), Ann. Civ. St. art. re- By peti- died tion an amended that “claim for be made April his mother his injury within six months after or re- widow, for herself and for as friend physical incapacity, moval of or mental as a child, They plaintiffs. precedent proceeding compen- her minor became condition for injury sation. Ward suffered June stated, as cause hereinbefore was <&wkey;398 3. Master and servant —Insurer death. The trial was to the to have waived for jury, and resulted in a Employers’ Liability Act. in favor of widow and minor child attorneys, advising attorneys Insurer’s against appellant $1,330, plaintiffs, for for action for for employe’s ap- nothing by mother peal that the take suit. The matter had been re- plaintiffs ferred to casualty for was alone. out, for filled Anderson, Galveston, Frank S. for investigating plaintiffs’ and that insurer was pellant. plaintiffs claim and cision did advise as to its de- Q. completed, Evans, Greenville, appellees. soon B. making not waive of a claim for com- pensation employe’s death within six WILLSON, (after stating C. thereafter, required by Employers’ above).. 4a, pt. of section the Em- Part Liability (Vernon’s Sayles’ Act, 4a§ Ann. Civ. ployers’ approved Liability Act 5246ppp). St. art. (General Laws, pp. 429 to 438 <&wkey;394Proceedings Master and servant Sayles’ 5246ppp]), Ann. Giv. St. art. compensation for death to be instituted be- was as fore Industrial Board before suit. proceedings injury “No compensation for death of * ** shall be maintained employe amendment respect claim for unless the Liability Act Gen. Laws injury to such months after shall have been made within six (Vernon’s same; or, occurrence of seq.), is not maintainable 5246—1 unless employs, in ease of the death of the or in been incapacity, physical of his or mental the event within of such instance before the Industrial in the first dent Acci- months after death or the removal incapacity.” physical mental Court, Hunt, Coun- from District making com- Dononey, Judge. ty; P.A. spec- the time an and others Jessie Ward set out ified Casualty Company Georgia and others. in an em- prerequisite > to the existence plaintiffs, Judgment for certain thereunder; ploys an award of a to. appeals. Reversed and named defendant specifi- that, dismissed. cally allege compensation in their Ward was June, Farmers’ Oil Cotton over- operating manufacturing made, when Company, hp erred Falls, on to said demurrer plant a “subscriber” Wichita ruled at Digests <¡ee and Indexes Key-Numhered in all and KEY-NUMBER <§=^For rehearing, * Judgment on motion ior S. 221 W. modified *2 v, CASUALTY CO. Tex.) WARD GKEORGTA 381 (220S.W.) Commission, appear alle the dustrial 290 Ill. N. E. ground from 125 it not that 369; appellees Levangie, a cause In gations had re N. 228 Mass. 117 therein that 200; noted appellant. N. E. v. Car & It will Kalucki American 1011; act, Co., Foundry the “in case Mich. W. 200 166 N. the terms that Co., if the employé” Brown v. 168 W. poration, sufficient Wéston-Mott 202 Mich. it was 437; Body six compensation made within N. Fisher Cor Rubin v. claim for months 534; in the It was 205 Mich. N. W. thereafter. 172 appellees Solray Co., appear petition Smith v. 100 Kan. Process amended 1918, filing April 15, 1918. The 163 died Pac. 645. It from either Ward does not that ap- appellees’ pleadings testimony claim was a that that the compensation provided the pellees Ward the six after he months suffered months, act, within six was filed made a claim it why died, therefor, appellees the no nor that Ward claim, demur the have sustained trial court should rer. Ackerson v. months after his death made such a Co., Kan. 96 Zinc National unless their after Ward’s death that is of the was such a claim within the him in 153 Pac. It suit commenced his lifetime allegations sufficiently appeared the from appellees were entitled in the to right statute. On further mat consideration of the act, compensation provided the in the prosecu ter we have concluded that the matter by appellees determine the hear and tion to of that such a was not Acci claim, in the Industrial first instance the dent and therefore that we erred when we alone, the court below to the as and overruled power signments to hear and de appellant’s attacking therefore was the the brief argument is that it as he did. termine by either unauthorized construed, properly pleadings testimony. or the We not think do suit,” quoting brief— from appellees’ “no there is merit that it insistence right, appeared waived its had disputed brought until it “can be urge any, pre if it ever had failure to to adjudicatedby the Industrial Ac- has first been sent as a reason Board, is and suit the event decision cident appellees why may brought upon main accepted not should be allowed to not appeal the find- in the nature of an tain the The insistence seems to be suit. ings of the board.” by agents appel based on written letters attorneys lant to con- This court held to two the first of the writer) satisfactory (to agents merely in the tention at letters said advised Levy Fidelity opinions by & ap Cas- torneys Justice their letter of March 13 to ualty House, Roach pellant Co. 191 S. v. re been referred to had Ass’n, they 328. As quested 195 S. W. Ins. v. we were— matter, conclusion reached view the compensation' “representing Mr. Ward for to one. ob- a sound Other in those cases have a claim for blank filled out jections in the are set out to your us, together return with advices to pre- assignments, think them but we none of Mr. as what amount to disability period why claiming, is it should be reversed. sents a reason claiming compensation.” he is affirmed. Therefore it is 4a of that “no it within six is, fered maintain opinion visions compliance 49; N. E. of selden v. indispensable Ill. dustrial [1-3] The within six months Central been construed to be 877; affirming proceeding for Commission, On Motion for be maintained unless act of Industrial like injury, or, months thereafter. Bushell v. Industrial language of the Car Locomotive & N. E. statutes provided requirements 496; Board, existence of 287 Ill. in other compel Monstgaard for therein. mandatory 275 Ill. provided; thereof claim for the Works v. In as it employé Similar jurisdictions Board, 122 N. E. emphatic payment section in the v. Hai pro suf 113 In neys agents appellant, tion and have found in Adams cause of not would vise that we “makinginvestigation ten. And the It [4] failure to letters, assuming that said cannot with reason be contended within the time as soon as 40 was a continuation have done who does v. position the follows from are of the letters did Cyc. done constituted an Crittenden, 191 S. W. 835. other, merely wrote 252 et agents the record that appear from had failed them opinion were— seq.; they what has anything agreement advised said authority claim, do existence never been writ 4 R. C. L. anything anything and will ad they to completed.”1 compensa been said one com- to waive payment statute, to bind attor- 799; they far we be (Tes. right, menced Ward and be J. A. James Ms W. J. F. plaintiff, to J. of bis failure Powers. From a appeal. make a claim for for tbe defendants Affirmed. sis it. witbin after be suffered Palacios, Gray, appellants. W. O. *3 compen- And, add, we far as was for Conger Davant, Bay City, appel- of sation for Ward’s lee. (General act of March PLEASANTS, by C. J. This is a suit amending seq.]), 5246—-1 pellee against appellants damages to recover effect, of took growing by crop, caused by depredations belonging appel- of cattle to' com-, proceedings for the statute as amended lants, large, appellants permitted which run at- must have been commenced law, in violation of the stock in first Instance portion Matagorda was in force in 'that before the Industrial Accident county appellee’s crop in which was situate. grant- rehearing for a will be motion The sought recovery The further im- ed, judgment here heretofore rendered pounding law, fees-allowed the stock aside, judgment will be statutory to foreclose a lien on the cattle for reversed, appearing will below damages the amount of the and fees. think, conclusively, from the record Appellants general denial, answered by the within the fixed special exceptions, general demurrer, statute way jury sought damages of cross-action judgment suffered, be ren- he will possession to their cattle while dismissing with- but here dered out appellee, improper feeding due to prejudice watering kept pen being and to too small prosecute the Industrial Board before to accommodate 91 head of cattle. death jury The below with a in the court Ward. judgment favor resulted a verdict and appellee $126.45, with foreclosure' upon lien said amount the.91 to secure petition. head of cattle described F.& POWERS v. J. JAMES. assignment presented error [1] The first brief is as follows: (Court of Civil of Texas. Galveston. judgment rendered, “The court erred in the 1920.) in that it a lien defendants’ cattle foreclosed, and ordered same because said Appeal <&=>742(6)— and error Statement held jury.” to the verdict of the assignment not to sustain not warranted verdict. propositiok and statement assignment An of error that the assignment are was tained, to the verdict cannot be sus- proposition where the and statement in its instructions to “The court merely you charged thereunder tended to show that are said: ‘But in this connection verdict was not warranted under the evidence if defendants’ cat- this case charge, assigpment merely pasture without, such got chal- tle out defendants’ lenged sufficiency support any knowledge defendants, of the verdict to and without sufficiency defendants, part not the of the fault on then there support evidence to against pur- verdict. lien could be no the cattle for the pose paying any damages such as the cat- Appeal <&=j742(4)—Assignment and error might tle have incurred reason of their admitting error considered, evidence not ¡¿closure.’ having entered into said (cid:127) when not followed statement. charged: you “Also ‘If believe from assignment complaining of the errone- cattle, got the evidence that defendants’ out ous admission of considered, evidence cannot be of the inclosure of the defendants where not required followed statement as any negligence part fault or on the by rule 31 for Appeals. Courts of Civil defendants, event, you plaintiff should find that damages, entitled to Appeal @=»549(2) Rulings and error on ev- you will further find that the lien considered, idence cannot be without bill of given by the statutes be foreclosed exceptions or statement of facts. satisfy damages, said cattle arnqunt Assignment complaining that the court re- any; contrary, you but, on the find from quired question defendant to answer cannot got the evidence ants’ said cattle defend- reviewed, or exception where there was no bill of through any inclosure, but that it was not showing any objection statement of negligence fault or fendants that on the of the de- defendants. they got out, then, in the event plaintiff any damages find is entitled to Court, Matagorda District defendants, you will further find County; Judge. Styles, Samuel J. statutory lien referred to be not fore- Key-Numbered Digests see <®=>Ror KEY-NUMBER in all and Indexes