No. 868-4968 | Tex. Comm'n App. | Mar 28, 1928
The defendant in error secured an award before the Industrial Accident Board for injuries received, and upon appeal by the association to the district court of Grayson county, the claimant again recovered, and, upon appeal to the Court of Civil Appeals, this judgment was affirmed. 297 S.W. 764" court="Tex. App." date_filed="1927-06-15" href="https://app.midpage.ai/document/texas-employers-ins-assn-v-wright-3952387?utm_source=webapp" opinion_id="3952387">297 S. W. 764.
The question presented to us, though urged in different forms, is fairly stated in plaintiff in error’s proposition as follows:
“In a suit to set aside an award of the Industrial Accident Board under the Employers’ Liability Act it is necessary for the party claiming compensation to allege and prove that claim for compensation for injury in the course of the employee’s employment was given to the Industrial Accident Board and the insurer within six months after the happening thereof; and failure so to do is jurisdictional and defeats said cause.”
The statute upon which this proposition is predicated provides:
“Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of same; or, in ease of death of the employe, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. 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.” Rev. Civ. Stat. 1925, art. 8307, § 4a.
As corollary to the proposition announced, it is further asserted that “jurisdictional allegations are an integral and necessary part of the case, without which there is no cause of action”; upon the face of the proceeding the question of ‘jurisdiction of the subject-matter arises without objection by either party. Such want of jurisdiction of the subject-matter cannot be waived by the parties nor disregarded by the court; “no presumptions or intendments will be indulged in to give a court jurisdiction, especially so in a , proper statutory proceeding where all the statutory provisions are mandatory and exclusive.”
.While these corollary propositions are accurate statements of the law, and while plaintiff in error’s major proposition may for the decision be assumed to be correct, we think the assignments presenting alleged error should be overruled, because there is in the record the following stipulation:
“It is agreed between the parties to this suit that this matter was presented under the statute to the Industrial Accident Board, and that within the statutory time the insurance association perfected its appeal to this court, and this cause is now properly before this court for hearing.”
It is next complained that it was error to permit the claimant, over the association’s objection, to reproduce evidence as to a lump sum upon the hearing for judgment on July 19, 1926, “forty days after the trial of the cause before a jury,” and after the jury had been discharged. The propositions asserted under this assignment are to the effect, first, that in order to authorize a lump sum settlement it is necessary for the claimant to allege and prove that his is a “special case,” and that “manifest hardship and injustice would otherwise result” unless such lump settlement is awarded; second, that the association was entitled to a determination of this matter by the jury; and others which, however, we think are embraced in the two propositions stated.
We must sustain the assignment complaining of this action of the trial court. There was a jury trial, and the cause- was submitted upon special issues. The issue of the right to a lump sum payment was not submitted, nor was it requested by either party to .be submitted. Being as it was an independent issue not submitted nor requested to be submitted in whole or in part, it was waived by the plaintiff, and the trial court had no authority to render judgment thereupon for the complainant. Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.2d 1084" court="Tex." date_filed="1928-01-11" href="https://app.midpage.ai/document/ormsby-v-ratcliffe-3974093?utm_source=webapp" opinion_id="3974093">1 S. W. (2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S.W.2d 591" court="Tex. Comm'n App." date_filed="1928-01-18" href="https://app.midpage.ai/document/bulin-v-smith-5000765?utm_source=webapp" opinion_id="5000765">1 S. W. (2d) 591.
We recommend that the judgments of the trial court and of the Court of Civil Appeals wherein defendants in error recovered judgment for the payment of a lump sum be reversed, and that the' judgment of the trial court in favor of defendant W. E. Wright against the Texas Employers’ Insurance Association for the sum of $7 per week for 401 weeks beginning May 1,1925, and in favor of J. H. Randell, attorney representing W. E. Wright, for one-third of said recovery, and of the Court of Civil Appeals affirming the judgment of the trial court, be affirmed.
• Judgments of the district court and Court of Civil Appeals reformed so as to allow defendants in error and their attorney the weekly payments as specified in the opinion of the Commission of Appeals, and, as reformed, said judgments are affirmed.