Oilmen's Reciprocal Association v. J. C. Franklin, 116 Tex. 59

Mr. Judge NICKELS delivered the opinion of the Commission of Appeals,

Section A. An award of compensation for an injury which occurred in Marion County was made to J. C. Franklin by the Industrial Accident Board on September 15, 1924, in accordance with the terms of the Workmen’s Compensation Law as amended in Chap. 103, Act of March 28, 1917 (Vernon’s Texas Civ. & Crim. Stats., 1918 Supplement). Oilmen’s Reciprocal Association, the insurer, within twenty days thereafter gave notice (as required in Par. 5,

Part 2, of the Act) to Franklin and to the Board that it would “not abide by said final ruling and decision.” Within twenty days “after giving such notice,” and on October 21, 1924, the Association filed suit (returnable to the November, 1924, term) against Franklin to set aside the award, but the suit was filed in the District Court of Harrison County.

In due course, and on November 1, 1924, Franklin filed his plea in abatement and bar insisting that the matter was not justiciable at all, and especially not in Harrison County, because the injury occurred in Marion County, and this suit, or any other of like purpose, had not been filed in the District Court of that county within twenty days after giving of the notice, or at any time, as required by the Act.

To this plea the Association answered that “if the defendant is entitled to any relief” he is not entitled to abatement, etc., but only to a transfer of the case to Marion County “as upon a plea of privilege” of venue. Upon hearing, November 4, 1924, the court treated the matter as being one of venue merely and ordered the case transferred to the District Court of Marion County. After the transfer Franklin renewed his plea and it was again overruled. His' exceptions, in each instance, are duly preserved.

In the meantime, on October 31, 1924, Franklin brought suit in the District Court of Marion County against the Association to enforce the award, alleging failure and refusal to pay or to bring suit, as required by the Act, “in the county where the injury occurred to set aside the award.” Subsequent to the overruling of the plea in abatement, in the case first mentioned, the suits were consolidated. The result of a trial was a judgment reducing the amount of compensation but enforcing the award otherwise. All parties appealed.

The case is now pending in the Court of Civil Appeals, Sixth District, and that court has certified these questions: “Article 8307, Sec. 5, Revised Statutes of 1925, of the Workmen’s Compensation Act, authorizes suits to set aside awards of the Industrial Accident Board to be brought ‘in some court of competent jurisdiction in the county where the injury occurred,’ within the time specified. “Question 1.

Is the requirement that a suit to set aside awards be brought in a court in the county where the injury occurred a matter of venue only, relating to the place of bringing the suit; or of jurisdiction, the power and authority conferred upon a particular judicial tribunal to rehear and finally determine the case? * * *. “Question 2. Did the District Court of Harrison County err in transferring the case to Marion County instead of dismissing the same on the plea of J. C. Franklin ? “Question 3.

Did the District Court of Marion County acquire jurisdiction over the case of Oilmen’s Reciprocal Association in virtue of the order of transfer made by the District Court of .Harrison County? “Question U. Did the District Court of Marion County err in not dismissing the suit of the Oilmen’s Reciprocal Association on the plea of J. C. Franklin?” The excerpt quoted as from Art. 8307, R. S. 1925, is the language employed in the Act of 1917 in force when the litigation arose and when the cases were tried.

It is not the language used in the revision of 1925, but the matter is governed by the earlier statute and the conclusions to be expressed relate to that statute without reference to any change of meaning, if any, imputed by the modified language of the revision. The legislation in question marks off and occupies a field of special regulation. The Legislature purposed a very material change of rights and remedies available to employers and employes of the classes dealt with.

Substantially, with the consent of those to be affected, pre-existent bases of rights were destroyed and old remedies were made unavailable-. In their stead, new conditions were prescribed under which rights would accrue and hitherto unheard of remedies for the enforcement of those rights were named, as generally explained in Middleton v. Texas Power & Light Co., 108 Texas, 96, 185 S. W., 556.

In becoming a “subscriber” under the law, the employer claims its benefits and thereby voluntarily yields rights which he might otherwise have in substitution for those there prescribed, and by entering or remaining in the service of an employer who has thus- become a “subscriber” the employe voluntarily effects a comparable change of position. As to a person, etc., who may become an “insurer,” the statute itself, of course, is the source of all rights claimable, and the subjection of those rights to the remedies prescribed rests entirely in volition.

As between the three persons affected in any case new rights, new duties and appropriate new remedies come into existence by operation of the law. There is, therefore, no basis for application of the rule under which it is thought the new remedy is but cumulative where the right itself was previously justiciable and there is no express destruction of the pre-existent remedy.

See 1 Cyc., p. 709. “It is in the general true that if an affirmative statute which is introductive of a new law direct a thing to be done in a certain manner, that thing shall not, even though there are no negative words, be done in any other manner.” Bac. Abbr. And, in our opinion, that rule is applicable so as to make the remedy here prescribed by the statute exclusive.

The language in which the remedy is described is that “any interested party who is not willing and does not consent to abide by the final ruling and decision of said 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 some court of competent jurisdiction in the county where the injury occurred to set aside said final ruling and decisions,” etc. (Art. 5246-44, Vernon’s Texas Civ. & Crim.

Stat., 1918 Supplement.) The authority for bringing the suit is conditioned upon its being filed within a certain twenty-day period and in a court of a certain locus. The time ”within which the suit is to be brought is not defined with more precision than is the place where it is to be brought. There can be no more warrant for allowing the suit where the latter condition is not performed than there is where the other condition is not performed. In our opinion, performance of neither condition may be omitted. For opinions containing expressions more or less in point, see: Harris v. Emp. Ins. Assn., Texas Civ.

App., 257 S. W., 1001; Employers’ Ind. Co. v. Felter, Texas Civ. App., 264 S. W., 139; Miller’s Ind. Underwriters v. Hays, Texas Comm. App., 240 S. W., 904; United States Fid. & Guar. Co. v. Lowry, Texas Civ. App., 219 S. W., 222, dissenting opinion. The question here is that which divided the court in United States Fid. & Guar. Co. v. Lowry, supra.

The decision of the majority in that case rests, primarily, upon the idea that a. general illimitable jurisdiction over cases of this class is given to all District Courts by that clause of Sec. 8, Art. 5, of the Constitution wherein it is provided, “the District Courts shall have original jurisdiction * * * of all suits, complaints or pleas whatever, without regard to any distinction between law and equity, when the matter in controversy shall be valued at or amount to five hundred dollars, exclusive of interest.” Upon the point it is said: “This jurisdiction is general in the District Courts, and is co-extensive with the limits of the State.

Under the Constitution, then, before this statute provided the right to bring suit to set aside an award of the Industrial Accident Board, the potential jurisdiction of every District Court in the State existed over the subject-matter.” It seems to us, however, that prior to enactment of the statute the “subject-matter” of a suit of this kind could not exist. It can arise and become litigable, as shown, only under and because of the terms of the statute. The suit would not have been cognizable under common law or any pre-existent statute, for neither the cause of action itself nor the remedy could exist.

Hence, we think, such jurisdiction as exists in a District Court at all is there solely because of the statute and its vesting is authorized by the last clause of Sec. 8, Art. 5, whereby a District Court is warranted to exercise “such other jurisdiction, original and appellate, as may be provided by law.” General jurisdiction as to all District Courts had been adequately provided for in earlier portions of Sec. 8, and the object of the last clause must have been the authorization of special and restricted powers of which those given by this statute are examples.

In noting our disagreement with the majority opinion in U. S. Fid. & Guar. Co. v. Lowry,*we do not wish to be understood as agreeing with the bases of dissent there expressed. Whether a suit of this kind amounts to an appeal is a question not before us, and in respect to it we do not state or imply a conclusion. We recommend the following answers to the questions certified : No. 1: “It is not a matter of venue, but it is one of jurisdiction.” No. 2: “Yes.” No. 3: “No.” No. 4: “Yes.”