37 S.W.2d 277 | Tex. App. | 1931
This is a compensation case tried upon appellee's appeal from an award of the Industrial Accident Board denying him the compensation claimed under the provisions of the Workmen's Compensation Act (Rev.St. 1925, art. 8306 et seq.). The following agreement was made upon the trial of the case to a jury: "It was admitted by defendant, Texas Indemnity Insurance Company that on the 18th day of June, 1928, it was the insurer for Magnolia Petroleum Company; that the Industrial Accident Board made an award in the matter of the claim of Isaac White, against the Texas Indemnity Insurance Company; that notice of dissatisfaction with the ruling of the Industrial Accident Board was given to the Company within twenty (20) days after the date of said award; and that suit was filed by the plaintiff, Isaac White in the District Court of Jefferson County, Texas, within twenty (20) days after giving notice of his dissatisfaction with the award of the Industrial Accident Board theretofore made on September 4th, 1929."
Answering special issues, the jury found that appellant sustained personal injuries on June 18, 1928, in the course of his employment with the Magnolia Petroleum Company, resulting in permanent total incapacity; his employer had actual notice of his injuries within thirty days after June 18, 1928; his physical condition was good cause for his failure to make claim for compensation within six months; his average weekly wage was $15.98; additional facts were found entitling him to a lump sum settlement. Judgment was accordingly entered in his favor for $3,377.90 "in the lump sum," with interest at 6 per cent.
Appellant's second proposition is that the district court was without jurisdiction to try this case or, to state the proposition differently, that appellant failed to prove that the amount of his claim as adjudicated by the Industrial Accident Board was within the jurisdiction of the district court. The language of the proposition is: "It was incumbent upon the plaintiff to prove, among other things, (b) the nature of the claim, that is, whether for partial disability, total permanent disability or partial permanent *278 disability; and (c) the amount of his claim asserted before the Industrial Accident Board."
By this proposition appellant does not assert that appellee was required to prove in dollars and cents the amount claimed by him before the Industrial Accident Board, but only that he was required to show that the nature of the claim there submitted was compensable within the jurisdiction of the district court. This proposition is not sound. Where the claim is denied or the claimant is not granted an amount of compensation satisfactory to him, as against this proposition, the essential jurisdictional fact to maintain his appeal, under Mingus v. Wadley,
This holding directly supports our proposition. For, if the Industrial Accident Board in making its award is not confined to the character of the claim filed before it, but may give full compensation for the injury and its actual results at the date of the award, certainly the claimant when he files his suit on appeal from the award of the Industrial Accident Board may claim full compensation for his injuries and "the results actually flowing from such injuries" as they exist when he files his suit on appeal, without regard to the nature of the claim or extent of disability at the time of the award.
Appellant's last proposition is that the court erred in refusing to submit, at its request, the following question: "Do you find from a preponderance of the evidence that the present disability of the defendant is due to a disease independent of an injury sustained in the course of his employment?"
Though this issue was pleaded by appellant, no error was committed in refusing to submit it to the jury, because no evidence was offered in support thereof.
For the reasons stated, it is ordered that the judgment of the lower court be and the same is hereby in all things affirmed.
Affirmed.