
    SOUTHERN SURETY CO. et al. v. NELSON et al.
    (No. 3523.)
    (Supreme Court of Texas.
    April 13, 1921.)
    1. Master and servant <@=391(/2, New, vol. 7A Key-No. Series — Compensation insurer, held not subject to attorney’s fees for default.
    Where servant was accidentally drowned in course of employment in 1915 and-liability for his death accrued under the Employers’ Liability Act of 1913 (Vernon's Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz) before the adoption of the amendment of March 28, 1917 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91) insurers against liability of the employer to its employees under the act were not liable for attorney’s fees by reason of refusal to pay the claim until it was established in a court of competent jurisdiction, notwithstanding Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4746, 5246yyyy.
    2. Master and servant <@=408 — Compensation suit maintainable without notice to Industrial Accident Board of refusal to abide by decision.
    Under Employers’ Liability Act of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246h-5246zzzz), notice to the Industrial Accident Board of refusal to abide by its final decision is not a condition precedent to suit, in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5246q.
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by Thomas P. Nelson and others against the Southern Surety Company and others. From a judgment of the Court of Civil Appeals (223 S. W. 298), reforming and affirming a judgment for plaintiffs, defendants bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court
    affirmed.
    T. H. McGregor, of Austin, D. T. Mason, and Frank S.1 Anderson, of Galveston, for plaintiffs in error.
    Maco & Minor Stewart, A. J. De Lange, Jules Damiani, and W. N. Zinn, all of Galveston, for defendants in error.-
   GREENWOOD, J.

Defendants in error, as the legal beneficiaries of Adolph Nelson, a deceased employee of the Standard American Dredging Company, recovered a judgment in the district court of Galveston county, for $1,981.70, against plaintiffs in error, as insurers against the liability of said company to its employees under the Texas Employers’ Liability Act (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5246h-5246zzzz). The judgment represented compensation for the employee’s death, without penalty or attorney’s fee. On appeal to the Galveston Court of Civil Appeals, the judgment of the district court was reformed, so as to award defendants in error, in addition to their recovery of $1,981.70, 12 per. cent, damages because of the failure of plaintiffs in error to pay the claim of defendants in error for more than 30 days after demand, and before the institution of suit. 223 S. W. 298.

The writ of error was granted because we believed the Court of Civil Appeals had erred in increasing the amount of defendants in error’s recovery by the twelve per cent, damages. Defendants in error .offered in this court to remit the 12 per cent, damages. Plaintiffs in error contested the right of defendants in error to have the judgment of the Court of Civil Appeals reversed, on the offer to remit, and to have, the judgment of the trial court affirmed, and thereupon this court ordered the cause advanced.

Adolph Nelson was accidentally drowned in the course of his employment by the dredging company in 1915, and liability for his death accrued under the Employers’ Liability Act of 1913, before the adoption of the amendment of March 28, 1917 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91). The act of 1913 contained no provision for the payment of penalties or attorney’s fee, as does the amendment of 1917. The Court of Civil Appeals was of the opinion that article 4746 of Vernon’s Sayles’ Texas Civil Statutes authorized the imposition of the 12 per cent, penalty.

Article 4746 was enacted in its present form in 1909, before the Legislature imposed liability to employees for certain industrial accidents on the agency termed the Texas Employers’ Insurance Association or on the companies specified in article 5246yyyy. The careful specification by the Legislature in the act of 1913 of the compensation to be awarded the injured employee or his beneficiaries, in the event of death, would seem to exclude the intent to allow additional recoveries by the employee or his beneficiaries.

However, the fact that it cannot be held that the Legislature clearly and.plainly intended the terms of article 4746 to apply to liabilities of a hind having no existence under the law of the state when the article was adopted precludes our extending the article so as to apply to such novel liabilities. Otherwise, we would be enforcing a penal statute, when it did not clearly apply, or enforcing it against one not manifestly within its terms, in violation of the established rules of construction of penal statutes. Carpenter v. T. & B. V. Ry. Co., 108 Tex. 53, 54, 184 S. W. 186, 1 A. L. R. 1449; Ӕtna Life Insurance Co. v. Parher & Co., 96 Tex. 291, 294, 72 S. W. 168, 580, 621; H., E. & W. T. Ry. Co. v. Campbell, 91 Tex. 557, 45 S. W. 2, 43 L. R. A. 225.

The purpose of penalties like those here involved is punishment for a civil wrong. It cannot be a wrong to exercise an unconditional and express statutory right. Section 5 of the act of 1913 conferred the right on any interested party to require suit to be brought for the determination of any question arising under the Act which was not settled by agreement. Article 5246q, Vernon’s Sayles’ Texas Civil Statutes of 1914. The right was not qualified by imposing a penalty upon a party in the event of a determination adverse to him. In refusing to pay the claim of defendants in error until it was established in a court of competent jurisdiction, plaintiffs in error exercised a right plainly and unqualifiedly conferred upon them by the statute; and their act cannot be made the basis for the imposition of a penalty.

Plaintiffs in error insist that defendants in error were not entitled to maintain their suit in the absence of notice to the Industrial Accident Board of refusal to abide by the board’s final decision. We thought, when we granted the writ, as we conclude now, that the statute requires no such notice as a condition precedent to suit. The direction that the board should “proceed no further toward the adjustment of such claim,” when any interested party did not consent to abide by the board’s final decision, makes obvious that it was not necessary to await such final decision before suing or requiring the filing of suit. Article 5246q, Vernon’s Sayles’ Texas Civil Statutes.

The assignment questioning the jurisdiction of the trial and appellate courts in this case is overruled, for the want of requisite support in facts pleaded, proven, or verified.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed. 
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