Standard Fire Insurance Co. v. LaCoke

HUTCHINSON, Justice. This litigation arises from a claim for worker’s compensation. The Industrial Accident Board on May 7, 1976, rendered its decision awarding the appellee here approximately $21,000.00 on her claim for compensation for job related injuries. On May 14, 1976, appellant filed with the Board its notice that it was not willing to abide by such award, thereby making June 3, 1976, the last day in which to file its petition in the District Court of Dallas County. On June 1, 1976, appellant’s counsel dictated and caused to be prepared an appropriate petition seeking to set aside the award of the Board. The signed petition with cover letter and cost deposit was, along with other mailings, placed in a flat brown envelope properly addressed with proper postage af — 803 — fixed and deposited in the postal depository in the lobby of Bryan Tower Building in Dallas, Texas, at 5:00 p. m. on the same day. Such envelope was delivered to the VIM Room located in the Dallas County Records Building on or before June 3, 1976. The VIM Room was maintained by the United States as a place for postal carriers to receive and sort mail for subsequent delivery to the offices of the Dallas County Courthouse complex. The district clerk’s office is located in the Dallas County Courthouse which is one block distant from the Dallas County Records Building. The posted open hours for the VIM Room was 7:45 a. m. to 8:15 a. m. and 9:30 a. m. to 10:00 a. m., the postal employee making mail deliveries to the various offices in the Dallas County Courthouse complex from approximately 8:15 a. m. until 9:30 a. m. and again from 10:00 a. m. to 11:00 a. m. during which times the VIM Room was closed and locked. At 11:00 a. m. the room was closed and locked for the day. About two years prior to June of 1976 a deputy district clerk, without the knowledge or consent of the district clerk, began picking up the district clerk’s mail at the VIM Room each morning between 5:00 a. m. and 5:30 a. m. and instructed the postal employee not to make the after 10:00 a. m. delivery and to hold mail received after the first delivery until the next morning. Appellant’s original petition was received in the district clerk’s office in the courthouse and file-marked at 7:51 a. m. on June 4, 1976. The trial court ordered that a separate trial first be had on appellee’s prayer to mature the award of the Industrial Accident Board and this appeal is from that trial. In answer to special issues the jury found (1) that appellant’s petition was received in the VIM Room on or before June 3,1976; (2) that it was placed in the district clerk’s box in the VIM Room where it was available to the district clerk and his employees on or before June 3, 1976; (3) that appellant failed to file this lawsuit on or before June 3, 1976; (4) that $3,000.00 would be a reasonable attorney’s fee for appellee’s attorney; and (5) that appellant had justifiable cause for not paying the appellee the award of the Industrial Accident Board. On motion the trial court disregarded the jury findings one and two and entered judgment for the appellee in the sum of $21,529.37, hence this appeal wherein appellee by cross-point complains of the trial court’s refusal to allow a recovery for the attorney’s fee and the 12% penalty. The first and primary question before this Court is whether or not the receipt of the envelope containing the appellant’s original petition and filing fee in the VIM Room of the Dallas County Records Building on June 3, 1976, constituted institution of a suit to set aside the award of the Industrial Accident Board. An instrument such as appellant’s petition is deemed filed at the time it is placed in the hands of the officer authorized by law to file the same and is left in his keeping, regardless of whether a file mark is placed on such instrument or not. Sun Lumber Company v. Huttig Sash & Door Company, 36 S.W.2d 561 (Tex.Civ.App. Dallas 1931, no writ). An instrument is “filed” when it is delivered to the proper officer and lodged by him in his office or received by him to be kept on file whether or not the same is marked “filed.” Kirby v. Travelers Insurance Company, 370 S.W.2d 912 (Tex.Civ.App. Beaumont 1963, writ ref’d n. r. e.); American Express Co. v. Monfort Food Distributing Co., 545 S.W.2d 49 (Tex.Civ.App. Houston-14th Dist.1976, no writ). In Gonzalez, Et Al. v. Vaello, Et Al., 91 S.W.2d 904 (Tex.Civ.App. San Antonio 1936, writ dism’d), the court stated: . . We conclude that when neither the clerk nor a deputy is to be found at the county seat and a petition, accompanied by a letter and a prepared citation, ready for the clerk’s signature, are deposited in a box in the office of such clerk, which box is kept by such clerk for the reception of incoming mail, such petition may be properly regarded as having been filed with the clerk.” The Texas Supreme Court in Glidden Company v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315 (1956), seems to — 804 — have approved the Gonzalez, Et Al. v. Va el-lo, Et Al. language, saying: . . That decision may well be sound, because the petition was subject to the custody and control of the clerk as soon as it was placed in his mail box. . ” (Emphasis added.) Then the Supreme Court proceeded to say: “The use of diligence to file the bond within the prescribed period, and the reasons for failure to do so, would be material considerations if compliance with the rule could be waived or excused or if the time of filing might be extended. It is well settled, however, that the requirement that the bond be filed within thirty days is mandatory and jurisdictional, and that the time prescribed cannot be dispensed with or enlarged by the courts for any reason. Bruce v. San Antonio Music Co., Tex.Civ.App., 165 S.W.2d 248 (writ ref.); El Paso & N.E.R. Co. v. Whatley, 99 Tex. 128, 87 S.W. 819. Since no discretion is lodged in any court to excuse delay, even of one day in filing the bond, the reasons for the delay, even though sufficient to justify the exercise of discretion in aid of the appeal, are not material. See Labansat v. Cameron County, Tex. Civ.App., 143 S.W.2d 94 (no writ); Long v. Martin, 112 Tex. 365, 247 S.W. 827. The case last cited holds that delay in filing the petition for writ of error is fatal to the jurisdiction of this Court although counsel used the utmost diligence to file the petition in time.” It is unquestioned that the jurisdiction to hear and determine an appeal from an award of the Industrial Accident Board depends upon the filing of suit in the district court within twenty (20) days after giving notice of appeal from the award of the Board and, of course, the burden is upon an appellant to file suit within the required time. Such requirement is both mandatory and jurisdictional. Texas Employers’ Insurance Ass’n v. Cook, 55 S.W.2d 205 (Tex.Civ.App. Waco 1932, no writ); American Motorists Insurance Company v. Box, 531 S.W.2d 401 (Tex.Civ.App. Tyler 1975, writ ref’d n. r. e.). Therefore, the question before this Court is simply whether or not under the facts of this case the appeal petition was filed with the clerk within the required time. The appellant chose to deposit its petition in the United States mail rather than to utilize hand to hand delivery. The record is void of any evidence that appellant made inquiry relative to the filing of its petition prior to the expiration of the allowed twenty (20) days. As stated in American Motorists Insurance Company v. Box, supra: “Appellant having selected the United States mail as its vehicle, it became appellant’s agent, and therefore, appellant was bound by the postal authorities’ failure to deliver the letter within the 20-day period allowed by the statute. Long v. Martin, 112 Tex. 365, 247 S.W. 827 (1923); American General Insurance Co. v. Kohn, 425 S.W.2d 688, 690 (Tex.Civ.App.—Austin 1968, no writ); Texas Employers’ Ins. Ass’n v. Cook, 55 S.W.2d 205 (Tex.Civ.App.—Waco 1932, no writ). . . .” In the recent case of Ward v. Charter Oak Fire Ins. Co., 567 S.W.2d 934 (Tex.Civ.App. Dallas 1978, no writ), the employee selected the mails as the mode of delivery of her notice of appeal to the Industrial Accident Board and the court held that the postal authorities became her agent, and she was thus bound by their failure to timely deliver the notice, citing American Motorists Insurance Company v. Box, supra. Appellant relies strongly upon the case of Gonzalez, Et Al. v. Va ello, Et Al., supra. There the instrument to be filed was deposited in a box in the office of the clerk which was maintained by the clerk for the reception of incoming mail and was under the exclusive control of the clerk. Here the instrument remained under the control of the postal authorities until it was delivered into the possession of the deputy clerk on June 4, 1976. We do not believe Gonzalez, Et Al. v. Va ello, Et Al., is decisive of this case. Under the facts presented appellant is bound by the mandatory and jurisdictional filing requirements, and the jury’s finding that it failed to file its petition on or before — 805 — June 3, 1976, is supported by the law and the evidence and appellant is bound therebyAppellee’s cross-point complains of the district court’s failure to enter judgment against appellant for its attorney’s fees and twelve percent (12%) penalty. In response to a special issue the jury fixed the sum of $3,000.00 as a reasonable attorney’s fee. The district court refused to enter judgment for an attorney’s fee nor would the court enter judgment for the 12% penaltyThe basis for appellee’s contentions is found in Section 5a of Article 8307 of the Worker’s Compensation Act. Appellee contends that the award became final on June 3,1976, particularly in view of the district court’s judgment to the effect appellant failed to perfect an appeal from the Board’s award. Of course, appellant did file suit to set aside the award of the Board and certainly has not failed or refused to bring suit to set the same aside as required by Section 5a of Article 8307. This section also provides for the delay of payments without penalty if “justifiable cause” exists. There is no contention that appellant has not prosecuted its cause in the trial court and here in good faith. Appellee’s cross-point is overruled. The judgment of the trial court is affirmed.