
    GEORGIA CASUALTY CO. v. WARD et al.
    (No. 8965.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 23, 1924.
    Rehearing Denied March 22, 1924.)
    1. Master and servant <&wkey;>349 — Adjudication of compensation claim by Industrial Accident Board held not condition precedent to suit on .claim accruing before amendment of, law.
    Workmen’s Compensation Act, as amended in 1917 (Vernon’s Ann, Civ. St. Snpp. 1918, art. 5246 — 1 et seq.), providing that suit cannot be filed in district court until adjudication by the .Industrial Accident Board, does not affect an fiction accruing .before the amendment became effective, and hence,*in an action arising before amendment, it was not necessary to give notice to the board of claimants’ refusal to abide its decision or first have the board’s adjudication before suit 'could be filed in district court, the proceeding being controlled by the compensation law as enacted in 1913 (Vernon’s Sayles’ Ann. Giv. St. 1914, art. 5246h et seq.).
    2. Master and servant &wkey;>394i/2< New, vol. 5A Key-No. Series — Notice and presentation of compensation claim accruing before amendment of law held not necessary to substitution on death of claimant.
    Where a cause of action under the Workmen’s Compensation Law (Vernon’s Sayles’ Ann. Giv. St. 1914, art. 5246h et seq.) had been perfected by a husband and father during his lifetime, and valid suit filed by him, compliance with the provisions for notice and presentation of claim of the 1917 amendment (Vernon’s Ann. Civ. St. Supp. 1918, art. 5246 — 1 et seq.) was not necessary in order that his widow and infant child might legally substitute themselves ns plaintiffs and prosecute the suit.
    Appeal from District Court, Hunt County; Newman Phillips, Judge.
    Action by Jessie Ward and others against the Georgia Casualty Company and others. Judgment for certain of the plaintiffs, and defendant named appeals.
    Affirmed.
    Frank S. Anderson, of Galveston, and McMahon & Dohoney, of Greenville, for appellant.
    B. Q. Evans, of Greenville, and Chas. L. Black, of Austin, for appellees.
   JONES, C. J.

Appellant, Georgia Casualty Company, is a corporation of the state of Georgia, and duly authorized to transact business in the state of Texas. In the trans-, action of its usual business it issued to ■Farmers’ Cotton Oil Company, of Wichita Falls, Tex., a subscriber under the Workmen’s Compensation Law, its policy of insurance covering injuries to the employees of said Farmers’ Cotton Oil Company, and. such insurance was duly in force on the 2d day of June, 1916. W. S. Ward, deceased, on June 2, 1916, was in the employment of the Farmers’ Cotton Oil Company, and as such employs was covered by appellant’s said policy of insurance. Appellees Mrs. Jessie Ward Smith and Murrell Ward were, respectively, the wife and child of the said W. S. Ward. Appellee J. A. Smith is the second husband of Mrs. Jessie Ward Smith and the stepfather and guardian of the child, Murrell Ward. The child, Murrell Ward, was the only child of the marriage of the said W. S. Ward and appellee Mrs. Jessie Ward Smith.

The following facts form the basis of this suit: On the 2d day of June, 1916, while performing the duties of his employment, W. S. Ward was seriously injured by being struck on the front part of'his head by a heavy blow from a wrench he was using at the time in his work. The injury received caused immediate total and permanent disability, both in body and mind, and this condition continued until the date of his death, which occurred on April 15, 1918. His death was caused by said injury.

The average weekly wage of W. S. Ward at the time of his injury was the sum of $15. Notice of the injury as required by law. was given to appellant and to the Industrial Accident Board by the employer of Ward, the said Farmers’ Cotton Oil Company; said notice being given on the day of the injury. No claim for compensation was made within the six months’ period required by law by the said W. S. Ward, and none made within said time in his behalf.

On March 13, 1918, attorneys, in Ward’s behalf, duly presented a claim for compensation to appellant and to the Industrial Accident Board. No sum of money was paid to appellant on this claim, and his right to compensation was never adjudicated by the Industrial Accident Board, nor was formal notice given said board that he did not intend to abide by its decision.

Suit was instituted in the district court of Hunt county, Tex., on the 2d day of April, 1918, to recover the compensation alleged to be due him under the Workmen’s Compensation Act in force at the time of his injury. Before the trial of this suit, and on the 15th day of April, 1918, the said W. S. Ward died. Appellant, as defendant, in the court below, took cognizance of this suit and duly filed its answer before the death of said Ward. After Ward’s death an amended petition was filed in which appellee, then Mis. Jessie Ward, in her own behalf and for the minor child, Murrell Ward, and Mrs. A. V. Ward, substituted themselves as plaintiffs and alleged the death of the said W. S. Ward as a result of said injury, and that Mrs. Jessie Ward was his surviving wife, that Murrell Ward was the only surviving child of the said W. S. Ward, and that Mrs. A. V. Ward was the mother of the said W. S. Ward, and that they were the only legal beneficiaries of the said W. S. Ward.

This suit was prosecuted to judgment in favor of the plaintiffs, and, on appeal, was reversed and remanded by the Court of Civil Appeals for the Sixth Supreme Judicial District. Some time previous to the second trial of the case, from which this appeal is perfected, Mrs. Jessie Ward married appellee J. A. Smith. Soon thereafter, and on the 7th day of April, 1921, the said J. A. Smith was duly appointed by a court of competent jurisdiction, guardian of the estate and person of appellee Murrell Ward, then a minor about 5 years of age.

Immediately after the appointment and qualification of the said J. A. Smith as guardian of appellee Murrell Ward, he gave the notices in writing required by the statute to appellant and also to Farmers’ Cotton Oil Company, and to the Industrial Accident Board, and made due claim for compensation to the said minor for the death of her said father. Thereafter a second amended petition was filed by appellees Jessie Ward Smith, joined by her said husband, by J. A. Smith, who made himself a party plaintiff, as guardian of the minor Murrell Ward, and by Mrs. A. Y. Ward, the mother of deceased. This second amended petition set up1 all the facts, in the view we take of the case, necessary for a recovery.

The case was tried before the court without a jury, with the result that the court gave judgment in favor of appellees Jessie Ward Smith and Murrell Ward in the sum of $2,853, to be equally divided between them, and against Mrs. A. V. Ward.

Appellant has duly perfected its appeal from this judgment, and has duly assigned and presented the errors that are here discussed.

In the view we take of this case, it is only necessary to determine whether or not the preliminary notices of Ward’s death and the presentation of the claim of ap-pellees for compensation on account of such death, as provided for by the Workmen’s Compensation Law (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h et seq.), should have been given under the facts of this case as a necessary condition to the right of appellees to substitute themselves as plaintiffs in the suit filed by Ward during his lifetime. If this be true, then appellee, Mrs. Jessie Ward Smith, should be denied a recovery because the undisputed evidence is that she neither gave the notice required nor presented her claim' for compensation. This would not necessarily conclude the minor appellee, on account of the notice and presentation of claim by the guardian. While it is not necessary to decide this question, we are inclined to the opinion that the notice given by its guardian and the claim presented by him would be sufficient in any event to fix its cause of action. Another question would | also be raised as to the status of the amount of compensation in the sum of $918 that accrued in favor of Ward previous to his death. This question we do not decide.

Under the amendment of 1917 to the Workmen’s Compensation Law (Vernon’s 'Ann. Civ. St. Supp. 1918, art. 5246 — 1 et seq), no suit could be filed in the district court until the Industrial Accident Board had adjudicated the claim for compensation. This, however, was not true of the Workmen’s Compensation Law as it was enacted in 1913, and in force at the time Ward received his injury. Southern Surety Co. v. Nelson, 111 Tex. 140, 229 S. W. 1113; Fidelity & Casualty Co. v. House (Tex. Civ. App.) 191 S. W. 155; Roach v. Employers’ Ins. Ass’n (Tex. Civ. App.) 195 S. W. 328.

While the death of Ward occurred after the 1917 amendment to the compensation law, and appellees’ rights accrued after this amendment was in force, still, under the very terms of the amendment, the law of 1913 must apply. Section 3b of part 4 of the Workmen’s Compensation Act of 1917 contains the following provision with respect to the Workmen’s Compensation Act of 1913:

“No inchoate, vested, matured, existing or other rights, remedies, powers, duties or authority, either of any employs or legal beneficiary, or of the board, or of the association, or of any other person shall be in any way affected by any of the amendments herein made to the original law hereby amended, but all such rights, remedies, powers, duties, and authority shall remain and be in force as under the original law just as if the amendments hereby adopted had never been made, and to that end it is hereby declared that said original law is not repealed, but the same is, and shall remain in full force and effect as to all such rights, remedies, powers, duties and authority; and further this act in so far as it adopts the law of which it is an amendment is a continuation thereof, and only in other respects a new enactment.”

Appellees were therefore not required to have their claim for compensation adjudicated by the Industrial Accident Board, but could at once file their suit in the district court and prosecute same to judgment.

Section 16, pt. 1, of the act of 1913 provides:

■ “In all cases of injury resulting in death, where such injury was received in the course of employment, cause of action shall survive.”

Under this section whatever right existed in Ward at the time of his death survived and passed to appellees .herein, the statutory beneficiaries of his cause of action. Ward’s cause of action was purely a statutory one, and could not be maintained except on compliance with all those provisions of the statute requiring notices to be given within a specified time and requiring claim to be presented within a specified time. If these requirements, necessary for the maintenance of his suit, had been complied with by Ward when the suit was filed, then this cause of action survived and passed to appellees as a cause of action fixed in its status so far as a compliance with all conditions precedent necessary to fixing a valid cause of action.

What was the status of this cause of action at the time of the death of Ward? Section 4a, pt 2, of the Workmen’s Compensation Act of 1913 provides:

“No proceedings for compensation for injury under this act, shall be maintained unless a notice of the injury shall have been given to the association or subscriber, as soon as practicable after the happening thereof, and 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.”

The trial court found .as a fact that the notices provided for in the above section of the statute were duly given immediately following Ward’s injury. This court also found as a fact that from the time of his injury until the day of Ms death, Ward was both physically and mentally incapacitated from making the claim for compensation within any time after the occurrence of the injury until his death. The undisputed evidence shows' that on March 13, 1918, previous to the filing of the suit, the claim for compensation was duly made and presented to the proper parties before the filing of the suit. Though this claim, was not presented within the statutory time of six -months after the injury was received, it nevertheless was a sufficient and valid compliance with the statute in that respect, because of the physical and mental incapacity of Ward. When the suit was filed in behalf of Ward on the 2d day of April, 1918, all necessary preliminaries therefor, made as conditions precedent to the right to maintain the suit, had been performed. Before Ward could maintain this statutory action, due and timely notice must have been given in the manner prescribed by this statute. This has been done. Before he could maintain such a suit, due and timely presentation of the claim for compensation must have been presented in the manner prescribed by the statute and under its terms. This also had been done. After the filing of tMs suit, ^and previous to Ward’s death, appellant had taken cognizance of the smt against it, as it was required to do, and had filed its answer therein. When Ward died, a perfected cause of action on which a proper suit had already been filed, and in wMch issues had already been joined, survived and passed to appellees. Appellees did not file a new smt, but, by amendment of the existing pleadings, made themselves parties to this suit, as they had the right' to do. To hold otherwise would give no force to the survival section of this statute.

If appellant’s contention be allowed to the effect that when Ward died the perfected cause of action, so far as compliance with necessary conditions could perfect same, died with Mm, and must be perfected again by appellees doing the same things Ward had done before any right to prosecute this suit passed to them, then it necessarily follows that Ward’s suit abated at his death. To such a contention we cannot agree. It is not the effect of the decision in this case by the Court of Civil Appeals for the Sixth Supreme Judicial District. Georgia Casualty Co. v. Ward et al., 220 S. W. 380, 221 S. W. 298.

We therefore hold that under the Workmen’s Compensation Act of 1913 it was not necessary either to give notice to the Industrial Accident Board of claimants’ refusal to abide its decision in a cause of action under said act, or first to have an adjudication of the claimants’ right to compensation by said Board, before suit on said cause of action could be filed in the district court, that under the terms of the amending act of 1917 the provisions of the act of 1913 apply to the cause of action asserted by ap-pellees, and that, a cause of action having been perfected by the injured husband and father during his lifetime, and a valid suit having been filed by him, the provision for notice and presentation of claim were not necessary in order that they might legally substitute themselves as parties plaintiff and as such prosecute the suit already filed.

We are of the opirnon that this cause should be affirmed.

Affirmed. 
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