Lumbermen's Reciprocal Ass'n v. Turner , 1927 Tex. App. LEXIS 492 ( 1927 )

Appellant's contention that the court below was without jurisdiction of the suit is on the theory that it was not commenced there within the time required by provisions in section 5 of article 8307, R.S. 1925, as follows:

"Any interested party who is not willing and does not consent to abide by the final ruling and decision of said [Industrial Accident] Board shall within twenty days after the rendition of said final ruling and decision by said Board give notice to the adverse party and to the Board that he will not abide by said final ruling and decision. And he shall within twenty days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision."

It appeared from an indorsement (admitted as evidence over appellant's objection thereto on the ground that it was hearsay) purporting to have been made by a sheriff in his official capacity on a written notice of appellees' unwillingness to abide by the decision of the board that same was served on the board September 2, 1925, and it appeared from a like indorsement (also objected to as hearsay) on a similar notice that same was served on appellant September 3, 1925. There was no other evidence showing service of the notices. If it should be conceded, and it is not (General Acc. Fire Life Assurance Corporation v. LaFair, 294 S.W. 247, decided by this court April 7, 1927), that the sheriffs' returns were competent evidence of service of the notices, it would appear that a compliance with the provisions in the statute set out above would have required the suit to have been commenced in Walker county, where the injury to appellee Turner occurred, not later than September 22, 1924, whereas it was not commenced until November 21, 1924, when appellees' petition was filed there.

Appellees insist, and such seems to have been the view taken of the matter by both the district court of Harris county, where the suit was first filed, and the district court of Walker county, where it was tried, that the requirement of the statute was not jurisdictional, but related only to the venue, as was held by the Court of Civil Appeals in United States Fidelity Guaranty Co. v. Lowry, 219 S.W. 222. But the law has been settled to the contrary of that holding by the decision of the Supreme Court in Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, and the answer of the Commission of Appeals in Oilmen's Reciprocal Ass'n v. Franklin, 286 S.W. 195, to questions certified to the Supreme Court by this court. In the Franklin Case, as in this case, the suit was commenced in another county (to wit, Harrison county) than the one in which the employee was injured, and afterwards transferred to the county (to wit, Marion county) where he was injured. In answering the questions certified as stated, the Commission of Appeals said that the requirement of the statute that the suit should be brought in the county where the injury occurred is not (quoting) "a matter of venue, but it is one of jurisdiction"; that the district court of Harrison county erred in transferring the case to Marion county, instead of dismissing it; that the district court of Marion county did not acquire jurisdiction of the case by virtue of the order of transfer made by the district court of Harrison county; and that the district court of Marion county erred in not dismissing the suit to set aside the award of the Industrial Accident Board transferred to it as stated.

Appellee insists, further, that appellant is in the attitude of having waived any right it had to question the jurisdiction of the district court of Walker county to hear and determine the suit, by reason of the fact that it asked that same be transferred to that county for trial and "answered to the merits of the cause of action." We do not think the contention should be sustained. It is provided in said section 5 of article 8307, referred to above, that if a party to the final ruling and decision of the board, after giving notice of his unwillingness to abide thereby, "fails within said twenty days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto." No right to set aside a decision of the board which has become binding upon the parties was conferred on a court by the Workmen's Compensation Law, and the parties could not by any act of theirs confer such a right. After the expiration of the 20 days in which appellees might have commenced the suit by the terms of the law, but did not, the board alone had power over its decision. Millers' Indemnity Underwriters v. Hayes (Tex.Com.App.) 240 S.W. 904; Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Harris v. Tex. Employers' Ass'n (Tex.Civ.App.) 257 S.W. 998; Hood v. Tex. Employers' Ass'n (Tex.Civ.App.)260 S.W. 243.

The judgment will be reversed, and judgment dismissing appellees' suit will be rendered here.