Thе appellee was injured on November 2, 1926, while in the course of his employment by Horton & Horton, for whom appellant was the insurer under the Texas Workmen’s Compensation Law; he duly presented his claim for compensation to the State Industrial Accident Board, which on March 28, 1928, made its final ruling and decision thereon, awarding him a recovery against appеllant for $20 per week for 401 weeks, less payments the insurer had already made.
Appellant, within 20 days after the entry of such final ruling, that is, on April 16, 1928, filed with the Industrial Accident Board — pursuant to the act of the Fortieth Legislature, chapter 223 (General and Special Laws 40th Leg. 1927, p. 328), amending section 5 of article 8307 of the 1925 Revised Statutes — notice of its' intention to appeаl from this award, giving no such notice, however, to the appellee as previously required by such section 5 of articlе 8307, and within 25 days after that date, or on May 4, 1928, filed this suit to set it aside in the court below, which was one of competent jurisdiction in thе county where the injury occurred.
The learned trial judge sustained a plea to the jurisdiction on the ground that, the appellee having been injured in 1926 when the act last referred to required the notice of a refusal to abide by the board’s final ruling to be given both to the adverse party and to the board, appellant’s attempt to so appeal to thе courts without it was ineffective, and dismissed the suit; from that action this appeal regularly proceeds, presenting herе the sole question as to which one of the two cited statutes governed, that in force at the time of the injury, or the amendment that had become effective at the time appellant was required to perfect its resort to the courts.
We think the latter act controlled; that statute, which appellant in all respects complied with, was enacted by the Fortieth Legislature in 1927, becoming effective on June 10th of that year, so was in force when the board’s award was entеred in 1928, and only required the notice of refusal to abide by it to be filed with the Accident Board> whereas section 5 of artiсle 8307 required that it be given to the adverse party also; while the giving of such a notice is undoubtedly a jurisdictional element (Tеxas Employers’ Insurance Association v. Fussell [Tex. Civ. App.]
So far as we can see, the precise question has not been directly decidеd by any of our appellate courts, but the principle thought to be applicable has been thus stated by the Beаumont Court of Civil Appeals in a case to which this amendment was not applicable, because it had not gone into effect when the award there involved was made. Insurance Association v. Fussell,
An inference, too, we think, might be indulged that the Texarkana Court of Civil Appeals would have held this amendment applicable, 'had it been in effect at the date of the board’s award there under consideration, from this expression in Insurаnce Association v. Bridges,
No useful purpose, it would seem, could be subserved by an attempt to here review the array of authorities so аbly presented by the appellee’s counsel as compelling a different view, since in our opinion they do not rеst upon the legal equivalent of the facts here obtaining, having to do with a subsequent change in some substantive or vested right оf either the claimant or the insurance company existing at the time of the injury; under all the authorities, these may not be аdversely affected by a subsequent amendment of the law; of this sort were the cases of Surety Company v. Lucero (Tex. Civ. Aрp.)
The amendment by the Eortieth Legislature in this instance took away no right from the appellee, except the mеre privilege of being directly served with a notice that the casualty company would not abide by the award as ending thе controversy; his compensation rate was not affected, neither was his right of recovery nor status in any other substantive respect altered in any way; the single change made was in the manner in which his adversary might perfect its resort to the courts from an award unfavorable to it.
It follows, from these conclusions, that the trial court erred in refusing to take jurisdiction and dismissing the suit; the judgment has been reversed and the cause remanded, with instructions that it be duly tried upon its merits.
Reversed and remanded, with instructions.