74 S.W.2d 185 | Tex. App. | 1934
This suit arose under the Workmen's Compensation Act. Appellee, an employee of the D. T. Jones Construction Company, which carried compensation insurance with appellant, was injured while working on a bridge in Runnels county, in February, 1932. He duly presented his claim to the Industrial Accident Board, and on July 12, 1932, was awarded compensation at $7 per week for an indefinite period, not to exceed 52 weeks. The insurer, appellant here, gave due notice of its refusal to abide by such award, and seasonably filed suit in the district court of Runnels county to set aside said award. The appellee answered by cross-action and sought recovery for total disability for the maximum time authorized by the statute. Trial was to a jury upon special issues, and the jury found that appellee was 75 per cent. incapacitated and entitled to compensation *186 for a period of 76 weeks; and that the average daily wage in that vicinity for his class of work during the preceding year was $4.75. The court rendered judgment in accordance with the verdict, from which the insurer has appealed.
Numerous propositions are presented, but only two contentions are here urged. The first is that since appellee did not give notice of any dissatisfaction with award made to him by the Industrial Accident Board, and did not himself prosecute an appeal therefrom, he could not invoke the jurisdiction of the district court on the insurance company's appeal from said award against it, and thereby recover a greater amount than said award. That is, in effect, that because he did not affirmatively take action himself to set aside such award, he is bound by it; but that because the insurance company did sue to set it aside, it is not bound by such award.
This contention has been definitely settled against appellant in the cases of Maryland Cas. Co. v. Baker (Tex.Civ.App.)
The court having properly acquired exclusive jurisdiction over the subject-matter of this suit — that is, the amount of compensation appellee was entitled to receive, and the manner of its payment — clearly it had jurisdiction as to both parties and of the entire subject-matter, to adjudicate all issues between the parties under the terms of the Compensation Act. Appellant, having invoked the jurisdiction of the district court upon that subject-matter, cannot then be heard to deny that jurisdiction, because in its exercise a more onerous judgment in favor of the injured employee is imposed upon it than was imposed by the original award of the board.
The only other contention made complains of the judgment rendered because there was not submitted to the jury the question of whether or not the appellee had been employed for a year next preceding the date of his injury. Appellant's contention in this regard is that the only evidence on this question was that of appellee himself, and because he was an interested witness, his testimony was not conclusive, and that therefore a jury finding thereon was necessary.
The measure of appellee's compensation, as sought to be established herein, was clearly predicated upon subdivision 2, § 1, of article 8309, R.S. 1925. It is now settled that the method prescribed in said subdivision 2 for computing a claimant's weekly wage cannot be resorted to unless it be shown that the method prescribed in subdivision 1 of said section is not applicable. American Employers' Ins. Co. v. Singleton (Tex.Com.App.)
The judgment of the trial court is therefore affirmed.
Affirmed.