The plea of privilege was properly overruled for these reasons:
(1) The suit was one for benefits under the Compensation Act, alleged to have inured to the appellee from having been *Page 243 injured in the county where the venue was laid while in the course of his employment there for the Sugarland Industries, for which the appellant was compensation insurer.
(2) "On the hearing of the plea of privilege the appellee testified, in substance, that he lived in Fort Bend county, Texas; that during the month of April, 1924, he was injured in that county while working for the Sugarland Industries at its mercantile building in Sugarland; that he was referred to his employer's doctors, who performed an operation upon him for hernia; that his employer and the Insurance Company had immediate notice of the injury, and the Insurance Company recognized its liability to him for compensation and paid him about 26 weeks compensation following his operation; that he went back to work for his same employer and worked for it in substantially the same employment and at substantially the same wage until November 1, 1932, at which time he was discharged by his employer; that the operation gave him more or less trouble after it was performed until the time he was discharged, and in fact the trouble gradually increased until the hernia broke down on him in 1931, without any unusual strain or accident, but it did not prevent him from continuing in his employment and earning his full wage until he was discharged in November, 1932; further that, because of his injury and the unsuccessful operation, he is not now able to work and is not now able to go out and get a job and hold it.
"To establish jurisdictional facts on this hearing, he offered:
"(a) Notice that the employer was a subscriber to the Workmen's Compensation Act;
"(b) Report of the original accident filed by the employer;
"(c) Receipt for compensation paid following the operation;
"(d) Notice to defendant and the Board of renewal of claim;
"(e) Award of the Board dated June 20, 1933;
"(f) Notice of appeal from the award to the district court of Fort Bend County.
"Being dissatisfied with the award of the Board, he then brought this suit in accordance with section 5 of article 8307, as amended by acts 1931, c. 224, § 1 (Vernon's Ann.Civ.St. art. 8307, § 5) which provides 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 (20) days after the rendition of said final ruling and decision by said Board file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days, after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision,' etc.
"The general venue statute, article 1995 (Rev. St. 1925), provides that no person shall be sued out of the county in which he has his domicile, except in the following cases:
"`30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given'
"Since the Compensation Law thus expressly fixes the venue of suits to recover compensation in the county where the injury occurred, and since this subdivision 30 of the general Venue Statute expressly provides that a statute which fixes the venue in special cases shall prevail over it, the conclusion follows that this suit should neither have been brought in, nor was removable to, the district court of Galveston County. This provision of the Workmen's Compensation Law — fixing the venue of compensation cases in the county where the accident occurred — has many times been construed by the courts as being mandatory — that is, as inhibiting the laying of the venue thereof elsewhere than in the county where the injury occurred. Chief Justice Cureton in Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1087, says:
"`As to the county where suit to set aside an award may be brought, the statute is clearly mandatory. Revised Statutes, art. 8307, § 5, provides that the suit to set aside the final award of the Board "shall" be brought "in the county where the injury occurred." The language used is mandatory and its purpose evident. Such a suit of necessity involves the fact of the accident, the issue of the injury, and the wages of the claimant; all of which may be established with less expense, trouble, and delay in the county where the injury occurred than in any other county. *Page 244
"`Having in mind the general rule that workmen's compensation acts are to be liberally construed to effectuate their beneficial purpose, there can be no doubt that, when the Legislature specified the county in which a suit to vacate an award should be filed as the county where the accident occurred, the specification was exclusive and intended to be jurisdictional. In fact, the statute itself declares that the rights of the parties are to be determined "by the provisions of this law." Besides, in special proceedings not within the common-law jurisdiction, the court's statutory designation of the venue is mandatory and jurisdictional.'
"Other authorities on the question are as follows: Lumbermen's Reciprocal Ass'n v. Turner (Tex.Civ.App.) 296 S.W. 901; Oilmen's Reciprocal Ass'n v. Franklin, 116 Tex. 59, 286 S.W. 195; Petroleum Casualty Co. v. Crow (Tex.Civ.App.) 16 S.W.2d 917; Tinkle v. Lumbermen's Reciprocal Ass'n (Tex.Civ.App.) 299 S.W. 285; Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490; Associated Indemnity Corporation v. Poteet (Tex.Civ.App.) 48 S.W.2d 663; Great American Indemnity Co. v. Essary (Tex.Civ.App.) 57 S.W.2d 891; Bishop on Workmen's Compensation Law of Texas."
(3) "The `date of injury,' as contemplated by this law, is the date of the employee's inability to procure and retain employment because of his injury, and an injured employee's having been paid by his employer in recognition of its liability as a result of such injury 26 weeks compensation following (and as for a successful) operation for hernia, and it having later and gradually developed that the operation was not successful, he was entitled to further compensation — under the general provisions of the law — beginning on the date of and continuing through the time of his actual inability to procure and retain employment, provided the total compensation paid to him did not exceed 401 weeks; nor — in such circumstances — was he required to file a claim for such additional compensation, unless and until the facts entitling him to it developed — that is, in this instance, that his hernia operation had been unsuccessful and would prevent his further procuring and retaining employment."
The appellee here, having filed a claim within six months after such facts developed, established a prima facie case under the compensation law, the venue of which properly lay in Fort Bend county; Texas Employers' Ins. Ass'n v. Fricker (Tex.Civ.App.) 16 S.W.2d 390; Indemnity Ins. Co. v. Williams (Tex.Civ.App.) 69 S.W.2d 519; Fidelity Union Casualty Co. v. Koonce (Tex.Civ.App.) 51 S.W.2d 777; Bankers Lloyds v. Andress (Tex.Civ.App.) 55 S.W.2d 896; Texas Employers' Ins. Ass'n v. Wonderley (Tex.Civ.App.) 16 S.W.2d 386.
(4) So, this was a case brought under the hernia provision of the Compensation Act — article 8306, § 12b — after an unsuccessful operation for that condition had been had, solely for the further compensation therein provided for in such a contingency; this section dealing with injuries resulting in hernia provides two distinct periods during which compensation is payable therefor, depending upon whether or not an operation has been had and has been successful — that is, it first recites "If the employee submits to the operation and the same is successful * * * he shall in addition to the surgical benefits herein provided for be entitled to compensation for twenty-six weeks from the date of the operation. * * * if such operation is not successful and does not result in death, he shall be paid compensation under the general provisions of this law [that is, article 8306, § 10] the same as if such operation had not been had."
Under section 6 of the same (art. 8306) it is provided: "No compensation shall be paid under this law for an injury which does not incapacitate the employee for a period of at least one week from earning full wages, but if incapacity extends beyond one week compensation shall begin to accrue on the eighth day after the injury. * * * If incapacity does not follow at once after the infliction of the injury or within eight days thereof but does result subsequently, compensation shall begin to accrue with the eighth day after the day incapacity commenced."
Since these sections 6 and 10 of the general provisions of the law dominate the appellee's suit for the additional compensation following his unsuccessful operation for hernia, it seems plain, not only that he would not have been entitled to any more than he had already received as for a successful operation for that trouble, but that he was entitled to claim more for the disability that followed the unsuccessful operation he had undergone, which did not accrue, however, until he became incapacitated because of it from *Page 245 further labor; that is the rationale both of the hernia section of the statute and of the courts' holdings last herein cited — the Morgan Case, 40 S.W.2d 205, not having arisen under section 12b, as for an operation for hernia that had been unsuccessful; in other words, "the date of injury" under this section and these authorities, means the date on which the employee became disabled to such an extent that he could neither procure nor retain employment; wherefore, the appellee's claimed compensation in this instance began to run from November 1st of 1932, when he first became incapacitated for further procuring and retaining employment. This appears to be plainly the meaning of the law in this regard, since it nowhere provides that compensation shall be paid during the period of 26 weeks immediately following the infliction of the injury as contended herein by the appellant.
The receipt signed by the appellee on November 5th of 1924 would seem to carry no material significance here, since at all events it had to do only with the 26 weeks' compensation he had received as for a successful operation not for that here involved, which had to do only with his alleged disabilities following what was charged to have been an unsuccessful one; upon like considerations, neither would the fact that appellee testified to having discovered the breakdown of his operation in 1931 seem material, or require that he give notice of any further claim on that account within six months from the time of such discovery on his part, because, as the court said in the Williams Case, 69 S.W.2d 519,524, supra: "Compensation is not provided for pain and suffering, but for the loss of wages, and no necessity would arise for giving notice and filing claim so long as the employee lost no time from his work, and received regular wages, the while under the belief his injuries were trivial or not lasting. Texas Employers' Insurance Ass'n v. Clark (Tex.Civ.App.) 23 S.W.2d 405, 408 (writ dismissed); Holloway v. Texas Indemnity Insurance Co. (Tex.Com.App.) 40 S.W.2d 75, 78; New Amsterdam Casualty Co. v. Scott (Tex.Civ.App.) 54 S.W.2d 175 (writ refused)."
Presumably the interpretation herein given section 12b was likewise officially given it by the Accident Board, since its final ruling on which this resort to the courts was had shows that it entertained the appellee's claim herein as having been made after due notice and in full accord with the statutory requirements, and refused the same, not because he had failed to give due notice thereof, as now claimed by the appellant, but because he had "failed to establish by proof that he suffered additional disabilities to that for which payment had heretofore been made."
Finally, it undisputedly appears that appellee's employer not only had immediate notice of the initial injury, but that its insurance carrier recognized its liability and paid him the 26 weeks' compensation as for a successful hernia operation; that thereafter — whatever his sufferings and his realization that, after all, the operation had not been really successful — he managed to continue his work for the same employer for the same wage until November 1st of 1932, then for the first time became in fact incapacitated to longer do that sort of work, and that within six months from that time he did duly file his claim for the additional benefits herein sought; these facts, under the authorities invoked, brought his case — at least prima facie — within the provisions of section 4a of R. S. art. 8307.