DocketNumber: No. 2241.
Citation Numbers: 220 S.W. 380
Judges: WILLSON, C.J. (after stating the facts as above).
Filed Date: 3/11/1920
Status: Precedential
Modified Date: 1/13/2023
"No proceedings for compensation for injury under this act, shall be maintained unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employé, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity."
It is insisted that making claim for compensation for an injury within the time specified in the part of the act just set out was a prerequisite to the existence in an employé of a right to an award thereunder; and that, because appellees did not specifically allege in their petition that claim for compensation for the injury to Ward was so made, the trial court erred when he overruled the demurrer to said petition on the *Page 381
ground that it did not appear from the allegations therein that appellees had a cause of action against appellant. It will be noted that by the terms of the act, "in case of the death of the employé" it was sufficient if the claim for compensation was made within six months thereafter. It was alleged in the amended petition filed by appellees April 17, 1918, that Ward died April 15, 1918. The filing of that petition was a claim by appellees for compensation provided for in the act, and, as it was filed within six months after Ward died, we see no reason why the trial court should have sustained the demurrer. Ackerson v. National Zinc Co.,
"can be brought upon a disputed claim until it has first been adjudicated by the Industrial Accident Board, and in the event the decision is not accepted suit may be brought upon the claim in the nature of an appeal from the findings of the board."
This court held to the contrary of the contention in the (to the writer) satisfactory opinions by Justice Levy in Fidelity Casualty Co. v. House,
"representing Mr. Ward for compensation to have a claim for compensation blank filled out and return to us, together with your advices as to what amount of compensation Mr. Ward is claiming, and the period of disability for which he is claiming compensation."
And the other merely advised said attorneys that said agents were —
"making investigation of the claim, and will advise you position of the company as to payment just as soon as investigation is completed."
It cannot with reason be contended that the letters, assuming the existence in the agents who wrote them of authority to bind appellant, constituted an agreement to waive the failure to present a claim for compensation within the time fixed by the statute, and it does not appear from anything we have found in the record that appellees because of the letters did anything they would not have done or failed to do anything they would have done had they never been written. 40 Cyc. 252 et seq.; 4 R.C.L. 799; Adams v. Crittenden, 191 S.W. 835.
It follows from what has been said that we are of the opinion the suit, so far as it was a continuation of the one *Page 382 commenced by Ward and in his right, could not be maintained, because of his failure to make a claim for compensation for the injury within six months after he suffered it. And, we add, so far as it was for compensation for Ward's death, which occurred after the act of March 28, 1917 (General Laws, c. 103 [Vernon's Ann.Civ.St.Supp. 1918, art. 5246 — 1 et seq.]), amending the act of April 16, 1913, took effect, it could not be maintained, because by the terms of the statute as amended proceedings for the compensation must have been commenced and prosecuted to a decision in the first instance before the Industrial Accident Board.
The motion for a rehearing will be granted, the judgment heretofore rendered here will be set aside, the judgment of the court below will be reversed, and, it appearing from the record conclusively, we think, that Ward did not within the time fixed by the statute present a claim for compensation for the injury he suffered, judgment will be rendered here dismissing the suit, but without prejudice to the right of appellees to prosecute before the Industrial Board a claim for compensation for the death of said Ward.
Fidelity Casualty of New York v. House , 191 S.W. 155 ( 1916 )
Roach v. Texas Employers' Ins. Ass'n , 195 S.W. 328 ( 1917 )
Vang Constr. Co. v. Marcoccia , 154 Md. 401 ( 1928 )
Lindblom v. Employers' Etc. Assur. Corp. , 88 Mont. 488 ( 1930 )
Taylor v. Am. Employers' Ins. Co. of Boston, Mass. , 35 N.M. 544 ( 1931 )
Petroleum Casualty v. Webb , 54 S.W.2d 1066 ( 1932 )
Traders' Gen. Co. v. Baldwin , 50 S.W.2d 863 ( 1932 )
Employers' Indemnity Corporation v. Woods , 230 S.W. 461 ( 1921 )
Indem. Ins. of North America v. Jago , 49 S.W.2d 943 ( 1932 )
Texas Employers' Ins. v. Lovett , 19 S.W.2d 397 ( 1929 )
Georgia Casualty Co. v. Ward , 259 S.W. 1103 ( 1924 )
Woolsey v. Panhandle Ref. Co. , 97 S.W.2d 257 ( 1936 )
Hood v. Texas Employers' Ins. Ass'n , 260 S.W. 243 ( 1924 )
Texas Employers' Ins. v. Hoehn , 20 S.W.2d 263 ( 1929 )
Collier v. New Amsterdam Cas. , 84 S.W.2d 1087 ( 1933 )
Employers' Indem. Corp. v. Felter , 264 S.W. 137 ( 1924 )
Texas Employers' Ins. Ass'n v. Nelson , 292 S.W. 651 ( 1927 )