291 S.W. 287 | Tex. App. | 1926
Lead Opinion
On January 1, 1924, appellee, Guy E. Price, then a resident of Texas, entered into a contract of employment at El Paso, Tex., with C. E. Goetting, a resident of Texas, to work as a mechanic on a road job which Goetting then had under contract and in progress in Lee county, N.M. Price entered upon his duties in New Mexico on February 4, 1924, under the contract of employment, and while so acting in the course of his employment suffered the injuries complained of, in Lee county, N.M. Goetting was at once notified of Price's injuries and took Price to a hospital in New Mexico, where he remained under the care of physicians for some three months, and was then removed to a hospital at El Paso, Tex., and was there, on September 21, 1924, operated upon by reason of his injuries. On November 17, 1925, Price filed his claim with the Industrial Accident Board of Texas, for compensation, against the appellant, Texas Employers' Insurance Association. On January 8, 1926, the Industrial Accident Board made its final ruling, dismissing the claim from consideration and discharging the Texas Employers' Insurance Association from liability, for the reason, as stated in its order, that Price did not make claim for compensation within the period of six months following the infliction of said injury, and had not established to the satisfaction of the board that his claim for compensation was meritorious, or that any good reason existed why the board should waive compliance with the legal requirement to file claim within six months.
In due time Price gave notice that he was not willing and did not consent to abide the final ruling, decision, and award of the board, and in due time filed this suit to set aside the award of the board, because, as alleged, not in accordance with the statutes of this state and unjust in denying to him its benefits.
This suit was filed and prosecuted to final judgment in the district court of El Paso county, Tex., resulting in a verdict and judgment in favor of appellee, Price, and against appellant, Texas Employers' Insurance Association, from which judgment appellant prosecutes this appeal.
Appellant introduced in evidence policy No. 05146 with Texas Employers' Insurance Association, C. A. Goetting, subscriber, dated June 1, 1923, and expiring June 1, 1924. The accident to Price causing the injuries complained of occurred within the time covered by the policy. Pretermitting every other question raised by the pleadings or evidence occurring subsequent to the accident, and sought to be raised and presented by assignments and points in briefs filed, and for the purpose only of determining the one question of the jurisdiction of the district court of El Paso county, Tex., we will assume that the policy of appellant association was in full force at the time of the accident, and embraced the claim of appellee for compensation for the injury complained of and that the claim for compensation, under the provisions of the Workmen's Compensation Act of Texas, was duly and timely presented to the Industrial Accident Board of Texas and by the board disposed of by final order refusing award.
The rights sought to be enforced by the suit and the remedies provided therefor *289
are purely statutory, as distinguished from the common-law rights and remedies, and for that reason the general rule to be applied is that the statutory provisions making effective such rights are exclusive and mandatory in asserting and maintaining such rights, and such rule is applied from the time of the injury to its final adjudication and necessary to the exercise of jurisdiction by every statutory agency. Mingus v. Wadley et al.,
Article 8306, part 1, § 19, Texas Civil Statutes 1925, reads:
"If an employee who has been hired in this state sustained injury in the course of his employment he shall be entitled to compensation according to the law of this state, even though such injury was received outside of the state."
The portion of article 5246 — 44, Tex. Comp. St. 1920, having application to the question under consideration at the time of the accident, causing the injury, reads:
"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 days after giving such notice [to the adverse party and to the board] bring suit in some court of competent jurisdiction in the county where the injury occurred to set aside said final ruling and decision. * * * Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provisions of this act."
Revised Civil Statutes 1925, art. 8307, § 5, in force at the time of the filing of appellee's original petition herein, reads as does the article last above quoted, except that it provides that the interested party "shall within twenty days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision."
The above presents no material change in the law. The statutes quoted provide, in substance, that an employee, hired in this state and sustaining injury in the course of his employment, is entitled to compensation, though his injury was received outside the state. His claim for compensation must be duly presented to the Industrial Accident Board, and, if not willing and does not consent to abide by its decision, he must bring his suit in the county where the injury occurred to set aside the decision, and the rights and liabilities of the parties to the suit are determined by the provisions of the Workmen's Compensation Law. It is readily seen that, if the law providing that the suit to set aside the decision of the board must be brought in the county where the injury occurred is exclusive, mandatory, and jurisdictional, no exception being found in the law as to injuries occurring outside the state, the action of the board would necessarily be final. In Mingus v. Wadley et al., supra, the Supreme Court used this language:
"As to the county where suit to set aside an award may be brought, the statute is clearly mandatory. Revised Statutes, art.
"Having in mind the general rule that Workmen's Compensation Acts are to be liberally construed to effectuate their beneficial purpose, there can be no doubt that, when the Legislature specified the county in which a suit to vacate an award should be filed as the county where the accident occurred, the specification was exclusive and intended to be jurisdictional. In fact, the statute itself declares that the rights of the parties are to be determined `by the provisions of this law.' Besides, in special proceedings not within the common-law jurisdiction, the court's statutory designation of the venue is mandatory and jurisdictional" (citing cases so holding).
In Oilmen's Reciprocal Ass'n v. Franklin (Tex.Com.App.)
The parties to this appeal in their briefs present other questions for our consideration, but having concluded that the trial court was without jurisdiction, the injury complained of having occurred outside this state, and the law under the Workmen's Compensation Act requiring suits to set aside the award of the Industrial Accident Board to be brought in the county where the injury occurred being jurisdictional, and the Legislature not having provided a court in which to bring suit to set aside an award by the board, where the injury complained of occurred outside the state, it is our opinion that the action of the board is final.
The judgment of the trial court is here reversed and set aside, and the case ordered dismissed.
Reversed and dismissed.
A reference to the record shows that Price entered upon his duties in New Mexico shortly after January 1, 1924, instead of February 4, 1924, as stated in the opinion.
Price's claim for compensation was filed with the Industrial Accident Board of Texas on July 25, 1925, instead of November 17, 1925, as stated in the opinion.
We might further say that it occurs to us that, in discussing his claim for compensation for injuries received, appellee overlooks the fact that his suit is necessarily based upon and prosecuted under the Workmen's Compensation Act of Texas, and is not the presentation of a claim for damages, a transitory common-law action, against the party who, by some negligent act, caused his injuries.
The Texas Employers' Insurance Association, the party sued and against whom the claim for compensation is made, was not his employer, nor was it in any wise connected with the work Price was engaged in when injured, and, if liable in any way, it must be by reason of its undertaking to compensate for injuries under the Workmen's Compensation Act of Texas.
For reasons stated, the authorities used by appellee in his motion for rehearing, discussing the rights of parties at common law to recover for damages against those who are responsible for acts of negligence causing the damage, are not applicable in this case.
Other than to make correction as to the above dates, the motion is overruled.
Addendum
Article 1870, R.S. 1925, taxes the costs of appeal against the appellee in any case reversed. The statute makes no exception, in which respect it differs from article 2066, relating to district and county courts, which authorizes the court, for good cause to be stated on the record, to adjudge the costs otherwise than as provided in that chapter. Article 1870 specifically directs that the appellant shall be entitled to an execution against the appellee for costs occasioned by the appeal. It makes no exception in cases reversed upon fundamental error, not raised in the court below. The courts, however, have ingrafted an apparent exception in cases where unimportant modifications of the judgment have been made respecting minor errors, which could have and, no doubt, would have been corrected in the court below, if called to the attention of that court. See 1 Sayles' Texas Civil Practice, § 739. Helm v. Weaver,
The case of Mercedes Produce Co. v. Roddy (Tex.Civ.App.)
Commercial Credit Co. v. Moore (Tex.Civ.App.)
We are therefore of the opinion the motion to retax the costs of the appeal against the appellant should be overruled. *291