Federal Underwriters Exchange v. Pugh , 1943 Tex. App. LEXIS 771 ( 1943 )

This is a workman's compensation case. John Pugh, a minor, by his next friend, filed suit in the District Court of Young County to set aside the award of the Industrial Accident Board and recover compensation on account of an injury sustained in Young County. The case was by agreement transferred to the District Court of Stephens County and tried there. Judgment was rendered for Pugh and the insurance carrier has appealed.

Appellant's first point presents its contention that since the employee's injury was sustained in Young County the District Court of Stephens County did not have jurisdiction to try the case and the judgment is, therefore, void. Appellee says that the cases cited by appellant to sustain this contention merely hold that the suit must be filed in the county where the injury occurred. Appellee contends that after the suit has been filed in the county where the employee was injured the cause may be transferred and tried in another county; that since this cause was transferred by agreement and since everything was agreed to, except the question of the extent of appellee's injuries, the District Court of Stephens County had jurisdiction to try the case. Appellee cites in support of his contention Oilmen's Reciprocal Ass'n v. Youngblood, Tex. Civ. App. 297 S.W. 255; Art. 2169, and Lawler's Workmen's Compensation Law, p. 457. The Youngblood case is directly in point and sustains appellee's contention. The statute and rule cited are the same. They provide: "Upon the written consent of the parties filed with the papers of the cause, the court, by an order entered on the minutes, may transfer the same for trial to the court of any other county having jurisdiction of the subject matter of such suit."

The question to be decided is whether the District Court of Stephens County to which this cause was so transferred had "jurisdiction of the subject matter." The Workmen's Compensation law, Vernon's Ann.Civ.St. Art. 8307, Sec. 5, provides that an interested party who is not willing to abide by the decision of the board shall give notice of such unwillingness and file suit within twenty days thereafter "in the county where the injury occurred * * *." Prior to the enactment of Art. 8307a, it had been definitely determined that if such a suit were filed in a county other than that in which the injury occurred, the court in such county could not transfer the cause to a court in the county in which the injury occurred. The only authority then possessed by a court in a county other than that in which the injury occurred was to dismiss the case. Art. 8307a, enacted in 1931, provides: "* * * in the event such suit is brought in any county other than the county where the injury occurred, the Court in which same is filed shall, upon ascertaining that it does not have jurisdiction to render judgment upon the merits, transfer the case to the proper Court in the county where the injury occurred." It further provides that when such a case is so transferred it shall be considered as originally filed in the court to which it is transferred. In Mingus v. Wadley, 115 Tex. 551,285 S.W. 1084, 1087, the Supreme Court, in an opinion by Chief Justice Cureton, said:

" * * * where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable.

"The Workmen's Compensation Act having created the rights to be enforced and provided the remedy therefor, each step in the progress of the maturity of a claim from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies.

* * * * * "As to the county where suit to set aside an award may be brought, the statute is clearly mandatory. Revised Statutes, art. 8307, § 5, provides that the suit to set aside the final award of the board ``shall' be brought ``in the county where the injury occurred.' The language used is mandatory, and its purpose evident. Such a suit of necessity involves the fact of the accident, the issue of the injury, and the wages of the claimant; all of which may be established with less expense, trouble, and delay in the county where the injury occurred than in any other county.

"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."

On appellee's contention that mere filing of the suit in the county where the injury occurred is all that is required by the statute and that after it has been filed there it may be transferred and tried in a different county, the following statements from said opinion appear to be precisely in point:

"We conclude, therefore, that the above venue provisions are mandatory and jurisdictional, and that no court, though otherwise competent, has jurisdiction, except one within the territorial limits of the counties designated by the statute.

* * * * * * "When such a suit is brought to set aside the award, the vitality and finality of the award is therefore suspended, and its subject-matter withdrawn from the Board and all of the courts, except the one in which the suit is filed, and which has complete and exclusive jurisdiction to go to judgment and execute its decisions." (Italics ours.)

In Federal Surety Co. v. Jetton, Tex.Com.App., 44 S.W.2d 923, 925, Justice Sharp said: "The rights and remedies given by the Workmen's Compensation Act are purely statutory; the statutory provisions as to both are mandatory and exclusive, and must be complied with in all respects; and such compliance is necessary to the exercise of jurisdiction by the first and all succeeding agencies, including the county where the injury occurred, where suit to set aside the award must be brought. Each step toward maturity of compensation claim from time of injury to the final adjudication is a mandatory requirement necessary to the exercise of jurisdiction by each agency provided for by this statute. Application for compensation, final award, timely notice of intention not to abide by the award, and timely suit must concur before jurisdiction of suit to vacate the award attaches. Suit in the proper court to set aside an award of the Industrial Accident Board suspends such award, and its subject-matter is thereby withdrawn from the board and from all courts except the one in which the suit is brought." (Italics ours.)

In Texas Employers' Ins. Ass'n v. Evans, 117 Tex. 113, 123, 298 S.W. 516, 519, the employee in a workman's compensation case filed suit in Palo Pinto County, where the injury occurred. He alleged, inferentially, that he was injured in Stephens County. After expiration of the time for bringing suit, he amended his petition to show that his injury was received in Palo Pinto County. The main question was whether, under such circumstances, the Palo Pinto County Court had jurisdiction. The Supreme Court in an opinion by Judge Short said: "The county court of Palo Pinto county was the only forum in which the suit could have been commenced and prosecuted." (Italics ours.)

In Alpha Pet. Co. v. Terrell et al., 122 Tex. 257, 265, 59 S.W.2d 364, 367, the Supreme Court, in an opinion by Justice Critz, considered a suit to set aside an order of the Railroad Commission, brought under a statute which provided that an interested party "shall have the right to file a suit in a court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission * * *." (Italics ours). The suit was instituted in Montgomery County. The Court of said county was held to be without jurisdiction. The court held that the requirement that suit be filed in Travis County was jurisdictional. The court said: "What we hold is that, where the suit is to enforce a right which exists only by operation of the statute, and not under the Constitution or the common law, it does lie within the power of the Legislature to designate a particular court as an exclusive tribunal to hear and determine such suit. In such a case where the statute, as this one does, provides that the suit shall be filed in a particular court, it demonstrates a conclusive legislative intent to designate such court as the only tribunal where such matter can be litigated." (Italics ours.)

See also 1 C.J. 988; 1 C.J.S., Actions, § 5; Oilmen's Reciprocal Ass'n v. Franklin, 116 Tex. 59, 63, 286 S.W. 195; Wilson v. Work, Judge,122 Tex. 545, 62 S.W.2d 490; Tinkle v. Lumbermen's Reciprocal Ass'n, Tex. Civ. App. 299 S.W. 285.

Similar statutes have been held jurisdictional.

Suits to annul orders of the Railroad Commission. Texas Steel Co. v. Ft. Worth D.C. R. Co., 120 Tex. 597, 40 S.W.2d 78; West Texas Compress Warehouse Co. v. Panhandle S. F. R. Co., Tex.Com.App., 15 S.W.2d 558; Alpha Pet. Co. v. Terrell, supra.

Suits to review action of the Board of insurance Commissioners Fixing Rates. Daniel v. Tyrrell Garth Inv. Co., 127 Tex. 213, 219,93 S.W.2d 372.

Proceedings to remove disabilities of a minor. Cunningham v. Robison, Commissioner, 104 Tex. 227, 136 S.W. 441; Gulf, C. S. F. R. Co. v. Lemons, Tex. Civ. App. 152 S.W. 1189; Id., 109 Tex. 244, 206 S.W. 75, 5 A.L.R. 943.

Suits to enjoin sale of specific property under order of sale, Gohlman, Lester Co. v. Whittle, 115 Tex. 9, 273 S.W. 806.

Eminent domain. Wilbarger County. v. Hall, Tex.Com.App., 55 S.W.2d 797.

Elections. Calverley v. Shank, 28 Tex. Civ. App. 473, 67 S.W. 434, 436; Adamson, Judge v. Connally, Tex. Civ. App. 112 S.W.2d 287.

Suits on a sheriff's bond. Bachus v. Foster, Tex.Com.App.,122 S.W.2d 1058.

The record shows that the parties to this suit have done all they can do by agreement to confer jurisdiction upon a court outside of the county in which the employee was injured. If the statute that created the cause of action and provided the procedure for its enforcement conferred exclusive jurisdiction, as we think it did, on a court within the county where the employee was injured, all other courts lacked potential jurisdiction of the subject matter of the suit and jurisdiction could not be conferred on a court outside the county in which the injury occurred, by agreement. In Perkins v. United States F. G. Co., Tex.Com.App., 299 S.W. 213, 217, the court said: "Parties to an action cannot confer jurisdiction of the subject-matter on the court by consent or estoppel. If the court has no jurisdiction of the subject matter, an agreement would be a nullity and unenforceable." See also Fidelity Casualty Co. v. Millican, Tex. Civ. App. 115 S.W.2d 464, writ refused; 11 Tex.Jur. 715; Cooper v. United States Fidelity Guaranty Co., Tex.Com.App., 29 S.W.2d 971, 973; Pierce v. Foreign Mission Board, Tex.Com.App., 235 S.W. 552, 555; Lumbermen's Reciprocal Ass'n v. Turner, Tex. Civ. App. 296 S.W. 901, 902.

We understand the cited opinions of the Supreme Court to hold that a suit to set aside the award of the Industrial Accident Board and recover compensation cannot be tried in any county other than the county in which the employee was injured; that the courts of any other county do not have jurisdiction of: the subject matter of such a suit. We, therefore, hold that the District Court of Stephens County was without jurisdiction to try this case.

The judgment is reversed and the cause ordered transferred to the District Court of Young County.