Ætna Casualty & Surety Co. v. Ware

MURRAY, Justice. Appellee, Joe Ware, instituted this suit in the district court of Bexar county, Seventy-Third judicial district, against the iEtna Casualty & Surety Company, as the workmen’s compensation carrier of the Brooks Field Post Exchange, seeking to set aside an order of the Industrial Accident Board of the State denying him compensation for an injury alleged to have been sustained by him on November 14, 1935, while an employee of Brooks Field Post Exchange. - The trial was to a jury, and upon favorable findings by the jury the court entered judgment in favor of Joe Ware in the sum of $3,712.25, and in favor of his attorney in the sum of $1,237.41. From this judgment the TEtna Casualty & Surety Company has prosecuted this appeal. Appellant’s first contention is that the jurisdiction of the court in which suit is filed to set aside an award of the Industrial Accident Board is determined by the amount of the claim before the Industrial Accident Board, and that where the plaintiff fails to show by the pleading and the proof (either or both) the amount of his claim before the Industrial Accident Board was for an amount within the jurisdiction of the court to which he has resorted for the purpose of setting aside an award, there is a failure to show the jurisdiction of such court,' and the case-should be dismissed for want of jurisdiction. In this case the only evidence in the record, which has any bearing upon the matter of the amount of the claim before the Industrial Accident Board, is contained in two documents filed with the Industrial Accident Board and offered in evidence by appellee, Ware. The first is notice of injury, and the second is the claim for compensation resulting from that injury. In neither of these two instruments does the appellee state the amount of his claim, in dollars and cents. The two instruments are very similar, and state in .effect that he received an injury while an employe of the Brooks Field Post Exchange, on the 14th day of November, 1935, that his injury was caused by slipping and falling while pushing a car on a graveled ground. In answer to the question as to what parts of his body were injured he stated: “Back and right shoulder and other bodily injuries.” As to the nature of his injuries he stated: “Rupture of the hip joints and inter vertebrae ligaments. Also the posterior ligaments of the right shoulder, affecting the whole nervous system.” He" stated that he had- not returned to work since December 7, 1935; the claim being dated December 11, 1935.' He further stated that his salary was $77.50 per month and that he worked eight hours a day, and six days a week; that he had lost time from December -7, 1935 to the date of the claim, which was December 11, 1935. There was no other evidence offered on the trial which would throw any light upon the amount of appellee’s claim before the Industrial Accident Board. The only allegation in his petition with reference to the amount of his claim was as follows: “That on or about the 10th day of February, 1935, said Board rendered an award in the matter of the claim of plaintiff, and that the amount claimed by plaintiff and in controversy between him and defendant herein, and to which he is entitled for said injuries under said Act is in excess of One Thousand ($1000.00) Dollars, and that by reason thereof, this court has jurisdiction of this cause.” There is no serious contention that this was not a sufficient allegation to meet the requirement that a claimant must allege facts showing that he has resorted to a court of proper jurisdiction; the complaint is that there is not sufficient proof of these facts; appellant’s exact contention being that appellee should have offered proof that his claim before the Industrial Accident Board was for an amount in excess of $500, either specifically expressed in dollars and cents, or stating facts which Would furnish the basis of a, calculation showing that in truth and in fact his claim was actually for a sum in excess of $500. We do not agree with this contention. The rule seems to be that in this regard *983 all that is required of a claimant is that he allege and prove the identity of the injury on which he based his claim before the Industrial Accident Board, with the injury upon which he sues, and, further, that such injury is one for which the maximum amount of compensation allowed by the Workmen’s Compensation Act is within the jurisdiction of the court in which he has filed his suit. In Texas Employers’ Insurance Association v. Moore, 46 S.W.2d 404, 405, by the Beaumont Court of Civil Appeals, High-tower, Chief Justice, speaking for the court, says: “This court, in a carefully considered opinion written by Mr. Justice Walker, in the case of Texas Indemnity Insurance Co. v. White, 37 S.W.2d 277, held that the amount in dollars and cents of a claim as made before the Industrial Accident Board was not the determining factor in fixing the jurisdiction of the court appealed to from the ruling of the board. In that case, we held that the identity of the injury received by the employee, for which he made claim before the board, with the injury shown by his petition in the court appealed to, was the determining factor in fixing the jurisdiction of that court. We thought, after very careful consideration, that we were correct in that holding, and still adhere to it. In the instant case, counsel for appellant do not dispute the fact that the injuries, for which appellee made claim before the board, are identical with the injuries for which he sought recovery in the trial court. “It results from these 'conclusions that the trial court was not in .error in overruling appellant’s general demurrer.” This opinion was upheld by the Supreme Court, 123 Tex. 302, 70 S.W.2d 702, and recently it has again been cited with approval in an opinion adopted by the Supreme Court, Texas Employers’ Insurance Association v. Wright, 97 S.W.2d 171, wherein it is said: “Identity of injury received by employee, for. which he made claim before Accident Board, with injury shown by his petition in court to set aside Accident Board’s award, rather than amount in dollars and cents of claim as made before board, held determining factor in fixing jurisdiction of court.” Other cases laying down this rule are: Texas Indemnity Insurance Co. v. White, Tex.Civ.App., 37 S.W.2d 277, writ dismissed ; American Employers’ Insurance Company v. Scott, Tex.Civ.App., 33 S.W.2d 845, 846, writ refused; Beal v. Ins. Co., Tex.Com.App., 55 S.W.2d 801; Travelers’ Ins. Co. v. Peters, Tex.Com.App., 17 S.W.2d 457; Texas Ind. Ins. Co. v. Williamson, Tex.Civ.App., 109 S.W.2d 322, writ dismissed; see also 45 Tex.Jur. p. 728, § 257. In American Employers’ Insurance Company v. Scott, supra, it is said: “The next question presented is also one of jurisdiction,- based upon a different theory. Neither the award of the Industrial Accident Board, the pleadings of plaintiff in the case, nor the evidence, shows the amount in dollars of the claim as it was presented to the Industrial Accident Board. It is insisted that, because the evidence does not show that such claim as presented to the board was for more than $500, the district court was not shown to have jurisdiction. It was not necessary that the, injured employee state the amount of his demand in his claim submitted to the board. Texas Employers’ Insurance Association v. Nunamaker (Tex.Civ.App.) 267 S.W. 749. It follows that some other test must be employed to determine what court had jurisdiction of the case. It has been held, and correctly so, we think, unless perhaps when the claim itself is affirmatively for a smaller amount, that jurisdiction is deterinined by the maximum amount of compensation which the law authorizes for the character of injury for which the claim is filed. Texas Employers’ Ins. Ass’n, v. Nunamaker, supra; Georgia Casualty Co. v. Griesenbeck (Tex.Civ.App.) 210 S.W. 273; Millers’ Indemnity Underwriters v. Hughes (Tex.Civ.App.) 256 S.W. 334. “In this case such jurisdictional amount is fixed by Revised Statutes 1925, art. 8306, § 10, and the district court had exclusive jurisdiction.” This holding was explained and enlarged upon on motion for rehearing, but in no way retracted. The rule is stated in 45 Tex.Jur. p. 730, § 257, as follows: “A proceeding to set aside an award of the board must be brought in a court of competent jurisdiction of the county in which the injury occurred, the particular court being ordinarily determined by the maximum amount of compensation authorized by law for the character of injury for which claim was made before the board. Thus where the statement of claim alleges an injury for which the law allows a maximum compensation of several thousand dollars, there can be no doubt that a suit *984 to set aside the hoard’s award is properly-brought in the district court. On the other hand if the allowable compensation for the claim pressed before the board is less than five hundred dollars the proper tribunal in which to- bring suit is the county court. Suits of this kind may also be filed in the justice’s court, where the amount involved is within its jurisdiction.” Appellant relies upon the case of Commercial Standard Insurance Co. v. Robinson, 91 S.W.2d 1147, by the Fort Worth Court of Civil Appeals. This case seems to be in conflict with the authorities above cited, but in view of the fact that a writ of error has been granted in that case, and in view of the fact that the Supreme Court in Texas Employers’ Insurance Association v. Wright, 97 S.W.2d 171 (a more recent case than the Robinson Case), has cited with approval the holding in Texas Employers’ Insurance Association v. Moore, supra, as above quoted in this opinion, we are unwilling to rely upon the Robinson Case. Appellant, in effect, concedes that if the claim filed by appellee had gone further and alleged that the injury complained of resulted in total and permanent disability to perform work in the future it would have been a claim over which the district court would have had jurisdiction. We think such a further allegation was unnecessary. The injury described was a general injury, and it would render the claimant either totally or partially incapacitated from performing labor. The maximum amount of compensation allowed for such an. injury is either fixed by section 9, as amended, or section 10, of article 8306, R.S.C.1925, Vernon’s Ann.Civ.St. art. 8306, §§ 9, 10. Regardless of which section it comes under, the maximum amount of compensation allowed is more than $500, and within the jurisdiction of the district court. It is clear that the injury described in appellee’s claim before the Industrial Accident Board is the same identical injury upon which he bases his suit herein and that the injury is- one for which the Workmen’s Compensation Act, article 8306 et seq., R.C.S.1925, as amended, Vernon’s Ann.Civ.St. art. 8306 et seq., allows compensation in a sum in excess of $500. Therefore the proof was sufficient to discharge the burden resting upon appellee to offer proof (for jurisdictional purposes) showing that the Seventy-Third district court of Bexar county was a court of proper jurisdiction in which to file his suit to set aside the award of the board and to recover compensation for his injury, Furthermore, it is clear that if the district court would not have jurisdiction of this suit, because the amount of the claim was not for an amount within the jurisdiction of that court, then, by the same reasoning, neither the county court nor the justice court would have jurisdiction, as the claim is not for any specific amount. To sustain appellant’s proposition would be to hold that there was no court to which appellee could resort to set aside the action of the board in denying him compensation and to seek to recover such compensation as he contends he is entitled to under the law. Such a construction would be a strict construction of the act, rather than a liberal construction, and it is universally held that the Workmen’s Compensation Act must be liberally construed. Appellant’s first proposition will be overruled. Appellant, by his second proposition, contends that the verdict of the jury was so contrary to the great weight and preponderance of the evidence as to show that the jury were actuated by prejudice in rendering such verdict. We have examined the record and are of opinion that the verdict is supported by and is not contrary to the preponderance of the evidence. Accordingly, this proposition is ‘also overruled. The judgment is affirmed. SLATTON, J., being disqualified, did not participate in the decision of this case.