C. D. Boatner was, on the 10th day of April, 1924, an employee of the Sugarland Industries, which held a policy of compensation insurance issued by American Indemnity Company. On said date Boatner, while in the course of his employment, suffered an injury which resulted in a hernia. On July 19, 1933, C. D. Boatner brought suit in the district court of Fort Bend county against the American Indemnity Company to recover for his injury.
He alleged the facts above stated, and that he had been directed by his employer to its doctors, who performed an operation in an effort to cure his hernia; that the *Page 240 defendant, American Indemnity Company, had paid him compensation for 26 weeks following his injury; that after the said operation he returned to work for his employer and continued to work at substantially the same kind of work as he performed prior to his injury until November 1, 1932; that during the month of April, 1931, he discovered that the operation which had been performed upon him was not successful, but he continued to work until November of 1932, when he was discharged by his employer; that since leaving the employment of the Sugarland Industries he found that he was unable to procure and retain employment because of the rupture suffered, and that he was not physically fit to undergo a second operation; that immediately after his injury, and within less than thirty days, his employer and the defendant insurance company each had actual notice thereof; that within six months he made a claim for compensation and was paid some compensation by the defendant on account of his injury; that he signed a receipt for the compensation paid him, believing that he had fully recovered from the injury, but that such receipt was not a settlement of his claim; that within six months after he was compelled to quit work in November of 1932 on account of his condition, and on or about January 17, 1933, he formally advised the defendant and the Industrial Accident Board of his claim for further compensation on account of his injury; that if he had not strictly complied with the statute in giving notice and filing his claim for compensation, such strict compliance should be waived because he believed that his operation would be successful and believed that he would be able to continue to work by wearing a truss, until November 1, 1932, when he discovered that he would not be able to further procure and retain employment, and that he did, within six months after that date, make and renew his claim for additional compensation; that on June 30, 1933, the Industrial Accident Board made and entered its final ruling, decision, and award on plaintiff's claim for compensation, and that he was not willing to abide by said award, and did, within 20 days after same was made and entered, file written notice with the board of his intention to appeal, and did bring this suit within 20 days after filing said notice of appeal.
Plaintiff's prayer was for compensation at the rate of $17.31 per week for 401 weeks, and that same be paid in a lump sum, less the discount allowed by law.
The defendant filed a formal plea of privilege to be sued in Galveston county, Tex.
Plaintiff contested defendant's plea of privilege, alleging that his suit arose under the Workmen's Compensation Law of Texas (Rev. St. 1925, art. 8306 et seq.), and that the injury for which compensation was claimed occurred in Fort Bend county, Tex., and that the district court of Fort Bend county, Tex., had exclusive jurisdiction, and that the district court of Galveston county, Tex., had no jurisdiction, and readopted all allegations in his petition and made same a part of the controverting plea.
Upon a hearing of the defendant's plea of privilege and the plaintiff's controverting plea, the court entered an order on November 20, 1933, overruling the defendant's plea of privilege to be sued in Galveston county and retained jurisdiction of the case in Fort Bend county. This appeal of the insurance company involves only the question as to whether the case should be tried in Fort Bend county or Galveston county.
Appellant, for reversal of the judgment overruling its plea of privilege, contends that, in view of the facts alleged by the plaintiff and the facts proven by this plaintiff's undisputed testimony, it is shown that appellee was injured on the 10th day of April, 1924, and that he was paid for all disabilities he sustained during the 401 weeks next succeeding his injury, and he had no cause of action under the Workmen's Compensation Act at the time the plaintiff filed his suit in 1933, and therefore the trial court erred in overruling appellant's plea of privilege to be sued in Galveston county, where it had its residence.
Appellant further contends for reversal of the judgment, that it affirmatively appears from the plaintiff's allegations and the undisputed evidence that he never filed any claim of any sort with the Industrial Accident Board within six months after he sustained his injury in April, 1924, and that he did not file any claim with the Industrial Accident Board within six months after the time he alleges his accident recurred in 1931, appellee testifying that he knew all the time after his operation up to and including the time when he left the employ of the Sugarland Industries in November, 1932, that his operation was not a success; *Page 241 that he never filed or attempted to file claim until January, 1933, and no allegation or proof being made excusing such delay, it conclusively results that appellee had no cause of action at the time he filed his suit under the Workmen's Compensation Act, and that venue of this cause does not lie in Fort Bend county, Tex.
The majority of this court sustains appellant's contention that by the allegations in the plaintiff's petition and the undisputed facts testified to by appellee, it is shown that appellee did not file or otherwise present any claim for compensation under the provisions of the Workmen's Compensation Act, with or to the Industrial Accident Board within six months after the time his injury recurred, as required by said act as a prerequisite to a recovery for such recurring injury, and as there was neither allegation nor proof made excusing such delay, it conclusively appears that appellee had no cause of action cognizable under the provisions of such act at the time he filed his claim with the Industrial Accident Board on the 17th day of January, 1933, nor at the time he filed this suit; wherefore, the court erred in not sustaining appellant's plea of privilege.
It was shown that appellee received his injury in Fort Bend county on the 10th day of April, 1924; that he underwent an operation for hernia, under the provisions of the Workmen's Compensation Act, which at the time was apparently successful, resulting in a cure of appellee's hernia; all expenses incurred by reason of such operation being paid for by American Indemnity Company; that appellee was paid compensation, under the provisions of the Workmen's Compensation Act relative to injuries resulting in hernia, for a period of 26 weeks; that after such operation, some time in 1924 or 1925, appellee returned to work for the Sugarland Industries, and he worked and was paid up to November, 1932.
Appellee testified that after the operation he constantly suffered pain from the hernia; that he procured a truss four months after the operation and wore it constantly and was wearing said truss on the 5th day of November, 1924.
On the date last stated, appellee, Boatner, executed and delivered to the appellant, American Indemnity Company, the following instrument:
"Received of: American Indemnity Company, insurer for The Sugarland Industries of Sugarland, Texas the sum of seventeen dollars and thirty cents, which sum together with weekly payments heretofore made to me aggregate the total sum of Four Hundred Forty-nine Dollars and Eighty cents, which sum is in full settlement of compensation due under the Texas Employers' Liability Act, for injury received by me on or about the 10th day of April, 1924, while in the employ of The Sugarland Industries of Sugarland, Texas, which injury resulted in rupture.
"Total number of weeks for which compensation has been paid: 26 weeks.
"Total amount of compensation paid: $449.80.
"Witness my hand this 5th day of November, 1924.
"[Signed] C. D. Boatner."
There was nothing to show that such settlement receipt was approved by the Industrial Accident Board.
It is shown by the undisputed evidence that from the time appellee, Boatner, resumed work in 1924 or 1925 he continued to perform substantially the same class or kind of work he had done before his injury up to the latter part of 1930 or first part of 1931, and, so far as the record shows, without notice to his employer, the Industrial Board, or appellant, that he still suffered from his hernia; that during the time he so worked his salary was raised to $175 per month; that in June, 1931, wages of employees generally were cut, and later another cut was made reducing Boatner's salary to $125 per month; that from 1924 to November, 1932, Boatner was working regularly.
Appellee testified that while he suffered some pain from his injury ever since the operation, the hernia was enlarged when he came from the hospital; it bulged out; that in the fall of 1930 his hernia just dropped down on him; that he first noticed that his hernia was getting worse some time after he left the hospital; that it kept gradually getting larger and larger, but it just dropped down in 1930; that it dropped down several times and that he got worse in 1931, and still worse in 1932, and that he quit work in November, 1932; that he filed no claim with relation to the original injury with the Industrial Accident Board, but he just got what was paid him and did not go to the board at all, because the doctor told him not to do so; that such advice or instruction was with respect to *Page 242 the original claim, which was voluntarily paid.
It is undisputed that appellee made claim to the Accident Board for the injury or the recurring injury for the first time on the 17th day of January, 1933, about nine years after the original injury, and not until he was discharged by his employer in November, 1932.
It clearly appears that appellee filed no claim for his injury with the Industrial Accident Board until January 17, 1933, about nine years after he suffered such injury, and about two years after he said his hernia fell down on him.
The question to be determined by this court, is, first, Did appellee at the time he filed his suit in Fort Bend county have an existing cause of action which arose under the provisions of the Workmen's Compensation Act? If he did, the exclusive venue of the suit was in said county, but if he did not then have such cause of action at such time, the trial court should have sustained appellant's plea of privilege and have transferred the cause to that court of Galveston county, the county of the residence of appellant, which had jurisdiction thereof.
We have reached the conclusion that it is shown by both the allegations in the plaintiff's petition and the undisputed evidence that appellee did not file a claim for injury with the Industrial Accident Board within six months after he received his injury, nor within such time after he discovered that his hermia had not been cured or had again developed after the aforesaid operation.
By section 4a of article 8307, Revised Civil Statutes of 1925, it is provided as follows: "Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of same; or, in case of death of the employee or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental capacity. For good cause the board may, in meritorious cases, waive the strict compliance with foregoing limitations as to notice, and the filing of the claim before the board."
In Morgan v. Petroleum Casualty Co., (Tex.Civ.App.) 40 S.W.2d 205,206, it is said: "We conclude that these pleadings showed an entire failure to file or any attempt to file, the claim for compensation before the Industrial Accident Board, within the six months specifically provided by statute in such cases, and were equally void of allegations showing any excuse for such failure. This requirement of the statute is jurisdictional and, in the absence of actual or attempted compliance therewith, neither the Industrial Accident Board nor the district court could take jurisdiction of the claim."
We are of opinion that there is in this case neither allegation nor proof showing any good cause for appellee's failure to timely file his claim with the Accident Board.
In Mingus, Receiver, v. Wadley, 115 Tex. 551, 285 S.W. 1084, opinion by Chief Justice Cureton, it is held that "The rights and remedies given by the Employers' Liability Act are purely statutory; the statutory provisions as to both are mandatory and exclusive, and must be complied with in all respects; and such compliance is necessary to the exercise of jurisdiction by the first and all succeeding statutory agencies, including the county (that where the injury occurred) where suit to set aside the award must be brought, this provision being mandatory and jurisdictional."
Having reached the conclusion above expressed, we further conclude that the district court of Fort Bend county had no jurisdiction of the cause of the plaintiff, as shown by his allegations and the undisputed evidence. It therefore becomes our duty to reverse the judgment overruling appellant's plea of privilege and to here render judgment for appellant, sustaining its plea of privilege, and it is accordingly so ordered.
Reversed and rendered.