Millers' Indemnity Underwriters v. Cahal , 257 S.W. 957 ( 1923 )

WALKER, J.

Appellees have filed a motion in this case to strike out the statement of facts, which appellants concede is well taken, but which they answer with a petition for certiorari to tile lower court to liave the defects in the statement of facts corrected. Also, in the event the petition should be denied, appellees have filed assignments of fundamental error, calling in review practically the same questions raised by their original brief. They conceded, on oral argument, that if reversed the only relief they could secure on a trial on the merits could be given them under their assignments of fundamental error in this court, and they expressed a willingness for the court to reform the judgment of the lower court if we should agree with their contentions. Appel-lees insist that the judgment of the trial court should be sustained, but recognized that it was in conflict with Western Indemnity Co. v. Milam, 230 S. W. 825, an opinion by this court, and stated in open court that they would accept and abide by any disposition we might njake of this case on authority of the Milam Case. Under this statement of the condition of this case, we do not see that any useful purpose could be effected by considering appellant’s petition for certiorari, but without passing on the merits thereof, dispose of the case on the assignments of fundamental error, which go to the heart of appellant’s propositions.

Appellant filed this suit to set aside an award of the industrial Accident Board against it in favor of appellees. Appellant stated, in oral argument, that the- purpose of the suit was to correct an error of the Board in fixing appellees’ compensation, on the facts as found and recited in the award. The trial court held that appellant’s suit was filed too late to give it jurisdiction, and that appellees’ cross-action was in the nature of a suit on the original award of the Board, which was as follows:

“J. M. Cahal, Employee v. Beaumont Ship Building. Millers’ Indemnity Underwriters, Insurer. E-10593.

“On this 15th day of April, A. D. 1921, after due notice to all parties at interest, came on to he considered by the Industrial Accident •Board the claim for compensation made, and asserted herein by J. M. Cahal against Millers’ Indemnity Underwriters; and it appearing that the questions involved herein have not been settled by agreement of the parties, as provided by law, the Board finds as follows:

“(1) That on June 3, 1920, the Beaumont Ship Building & Dry Dock Company was a subscriber to the Employers’ Liability Act, and on that date carried a policy of insurance with the Millers’ Indemnity Underwriters.

“(2) That on said 3d day of June, 1920, J. M. Cahal was in the employ of the said Beaumont Ship Building & Dry Dock Company, and as such employee was covered by said policy of insurance.

“(3) That on said date and while engaged in the course of his employment the said J. M. Cahal sustained injuries in the manner and to the extent set out in report of accident, claim for compensation and other evidence now of record in this cause.

“(4) That the average weekly wages of the said J. M. Cahal made the predicate of compensation herein is the sum of $40.38, and he is therefore entitled to compensation at the maximum rate of $15 per week.

“The board further finds that in consequence of said injuries the said J. M. Cahal suffered total incapacity for work from June 3, 1920, to September 3, 1920, and is therefore entitled to recover compensation herein at the maximum rate of $15 per week for the period of 12 weeks embraced between June 11, 1920, and September 3, 1920, both dates inclusive, and aggregating the total sum of $180, which is now declared to be due and payable.

“The Board further finds that following the termination of total incapacity on said 3d day of September, 1920, the said J. M. Cahal suffered permanent partial incapacity in the percentage of 30 per cent, as related to the loss of the use of a hand for which he is entitled to recover compensation at the rate of $7.27 per week for the definite period of 138 weeks beginning on September 4, 1920, and continuing thereafter from week to week as the same accrues until the full period has expired.

“The Board further finds that the said J. M. Cahal has been represented in the presentation to and prosecution of his claim for compensation by C. W. Howth, an attorney at law residing at Beaumont, Tex., and that his services rendered in this connection have been of the reasonable value of 15 per cent, of the first $1,000 and 10 per cent, of all amounts in excess of said first $1,000 paid on this award, to be paid out of weekly installments of compensation from week to week as the same accrue.

“It is therefore ordered, adjudged, and decreed by the Industrial Accident Board that Millers’ Indemnity Underwriters pay to J. M. Cahal the sum of $180; and that said Millers’ Indemnity Underwriters also pay to J. M. Cahal compensation at the rate of $7.27 per week for the definite period of 138 weeks, beginning on September 4, 1920, and continuing thereafter from week to week as the same accrues until the full period has expired, less a credit of the sum total of all amounts heretofore paid, to the' said J. M. Cahal and less attorney’s fee hereinafter ordered and directed paid to C. W. Howth.

“It is further ordered, adjudged, and decreed by the Board that Millers’ Indemnity Underwriters pay to C. W. Howth, an attorney of Beaumont, Tex., a fee in a sum equal to 15 per cent, of the first $1,000 paid on this award, to be paid out of weekly installments of compensation from week to week as the same accrue.

“It is further ordered, adjudged, and decreed by the Board that when this award has been paid and satisfied in accordance with its terms and provisions that the Millers’ Indemnity Underwriters will be fully and finally acquitted and discharged from liability on account of this claim for compensation.”

On the theory that appellees’ cross-action was a suit on tbe original award, and that appellant bad filed its suit too late to give it jurisdiction, tbe trial court entered judgment .in favor of appellees against appellant for tbe amount awarded bim by tbe Industrial Accident Board. Under tbe construction given by us to ' article 5246 — 21, Vernon’s Sayles’ 1918 Supplement, in Western Indemnity Co. v. Milam, supra, tlie action of tlie court in entering this judgment was fundamentally erroneous. On the facts found by the Board, appellees could not receive more than $15 a week for 12 weeks on the finding of total disability and $4.50 a week on the finding of partial disability. As we construe the article cited, this was the full extent of appellant’s liability on the facts found by the Board. We therefore reverse the judgment of the trial court and here enter judgment in favor of appellees against appellant for compensation for weeks at $15 per week and for 1S8 weeks at $4.50 per week, less a credit of $105 to be applied against the award of total incapacity, with interest.at the rate of 6 per cent, per annum on each item as it matured. We are decreeing interest in accordance with the judgment of the courjfc, because appellee has not complained of that decree, and therefore we do not feel that we have authority to reverse the trial court on that point. The costs of the lower court will be taxed against appellant, and the costs of this appeal against appellees.

Reformed and affirmed.