Cooper v. United States Fidelity & Guaranty Co.

ORITZ, J.

In the interest of brevity we refer to our original opinion reported in 29 S.W.(2d) 971 for a full statement of this case.’ We, however, make the following brief statement in order that this opinion may be complete within itself:

On November 26, 1926, Mrs. Cooper was an employee of Southern Pacific Building Company of Houston, Tex. This company ■carried compensation insurance with United States Fidelity & Guaranty Company. Mrs. Cooper contends that on the above date and while an employee of the building company, she suffered certain injuries in the course of her employment, resulting in permanent loss of the use of her left wrist, and partial in•capacity of her right knee. She filed a claim for compensation with the Industrial Accident Board within the time required by law. On February 11, 1927, the board acted for the first time on this claim and denied Mrs. Cooper any compensation. Mrs. Cooper gave no notice of dissatisfaction with the action of the hoard, and brought no suit in the district ■court to set aside the order of the board within the time prescribed by law. Later, on June 30, 1927, the matter was again brought before the board for review. We presume from the order of the board in acting upon this matter' the second time that it was then brought before the board by Mrs. Cooper. On ■such date, June 30, 1927, the board again refused compensation, and, as shown by its order, held that there was no showing of change ■of conditions, mistake, or fraud. Within 20 ■days after the rendition of the second order, again refusing compensation, Mrs. Cooper brought suit in the district court against the guaranty company for compensation under the Workmen’s Compensation Act (Rev. St. 1926, art. 8306 et seq.). In this suit Mrs. Cooper did not attempt to allege or prove any change of conditions, mistake, or fraud.

Under the above record, after a trial in the district court, Mrs. Cooper was awarded compensation. On appeal the Court of Civil Appeals reversed the judgment of the district ■court, and rendered judgment dismissing the case. 14 S.W.(2d) 342. This judgment was affirmed by the Supreme Court on recommendation of this section of the commission in the opinion above mentioned.

As we construe the opinion of the Court of ■Civil Appeals, that court holds that the district court was without jurisdiction because the accident hoard had no right to reopen the case without a showing of change of conditions, mistake or fraud. In our original opinion we did not pass upon this question, but held that section 12d of article 8306, R. C. S. of Texas, 1925, only applied to cases where the áccident board had previously made an award allowing compensation, and that such statute has no application to cases in which the board has previously made an award re- ' fusing compensation.

On motion for rehearing by .Mrs. Cooper, it is called to our attention that the above holding is in conflict with the holding of the commission in the case of Millers’ Indemnity Underwriters v. Hayes, 240 S. W. 904. An examination of the opinion in the Hayes Case convinces us that our holding in the instant case is in conflict therewith; in fact, while the original opinion in this case was pending before the Supreme Court, and before they had adopted the judgment recommended therein, we had our attention called to the Hayes Case, and in turn, called the attention of the Supreme Court thereto. In this condition of the record we have consulted with the Supreme Court and they have informed us that they entered the judgment recommended by us in our original opinion in this ease, with the opinion in the Hayes Case before them, and with the full realization at the time, that the holding in the instant case has the effect of overruling the Hayes Case. Also the Supreme Court have informed us that they are still of the opinion that the construction placed6 on section 12d of article 8306, supra, in our original opinion in this case is correct, and that the construction placed thereon in the Hayes Case is erroneous, and should be overruled. We therefore still adhere to the holding in our original opinion, and expressly overrule the holding in the Hayes Case.

Furthermore, even if we should adhere to the construction of section 12d of article 8306, supra, as announced in the Hayes Case, still Mrs. Cooper could not recover in this case, and the motion for rehearing should be overruled. As disclosed by the above statement, Mrs. Cooper did not attempt in the instant proceeding to allege or prove any change of conditions, mistake, or fraud, since the denial by the board of her first application. Under the plain terms of the statute, whenever irregularities or errors are made in an original award, they must be corrected by an appeal to the district court in the manner, and within the time prescribed by the statute. It is only where there has been ’a change in the physical condition of the claimant since the first award that the board may change or modify its original award. Independence Indemnity Co. v. White (Tex. Com. App.) 27 S.W.(2d) 529, and authorities there cited. The rule announced in the White Case, supra, is a complete bar to the right of recovery in the instant case.

We therefore recommend that the motion for rehearing filed herein by Mrs. Cooper be in all things overruled.