I concur in the judgment of affirmance, and respectfully present this concurring opinion in support thereof, in addition to the able opinion of Justice MURRAY.
It is conceded that appellee timely filed notice and claim of his injuries, and, upon being denied compensation by the Industrial Accident Board, timely gave notice of dissatisfaction with that decision and timely filed this appeal therefrom to the district court.
The controlling question in this appeal is that of whether by his pleading and proof appellee was required to and did show that his claim for compensation filed with the Industrial Accident Board was for an amount within the jurisdiction of the district court.
The question is presented in appellant's first proposition, as follows: "The amount in controversy for jurisdictional purposes *Page 985 in Workmen's Compensation cases is determined by the amount claimed before the Industrial Accident Board, and where the plaintiff, as in this case, filed a claim with the Industrial Accident Board alleging general injuries only and showed that incapacity to work had been in existence less than a week at the time the claim was filed and said claim did not allege that such incapacity would continue for any definite or indefinite period of time, and did not allege any amount of money as claimed as compensation, and there being no other evidence as to the amount of compensation claimed before the Board, the plaintiff wholly failed to establish the necessary facts showing jurisdiction to try said cause in the District Court."
In his notice of claim, and in his claim for injuries filed with the board on December 5, 1935, appellee stated the time, place, date, and cause of the injuries for which he claimed compensation; that said injuries, received on November 14, 1935, were to his "back and right shoulder and other bodily injuries"; that the "nature" of said injuries were "rupture of the hip joint and inner vertebræ ligaments. Also the posterior ligaments of the right shoulder, affecting the whole nervous system ;" that he had not worked since December 7, 1935, and had lost the time from that date up to the date of his claim; that his wages were $77.50 per month, working eight hours a day, and six days a week. We copy the allegations in appellee's petition deemed pertinent to this inquiry:
"Second: Plaintiff further alleges that on or about the 14th day of November, A.D. 1935, he was in the employ of the Brooks Field Post Exchange, in the City of San Antonio, Bexar County, Texas, and that in the due course of his employment, he had an accident while pushing a car on graveled ground which caused him to slip and fall, and as a result of said accident he sustained severe injuries to his back in the lumbar and sacroiliac regions, producing severe injuries to the ligaments, tendons, muscles and joints entering into the makeup thereof, and also injuries to his right shoulder, which has resulted in traumatic arthritis, and that all of said injuries so sustained by plaintiff are permanent and lasting, and that he has, by reason thereof, been totally and permanently incapacitated from performing labor of any kind and that same is permanent."
"Sixth: Plaintiff would further show that on or about the 11th and also on or about the 20th day of December, 1935, a report o his injuries, as required by law, was giver to the Industrial Accident Board, at Austin Texas, and further that on or about December 11, 1935, he also gave notice to said Board of his claim for compensation insurance on account of said injuries; that on or about the 10th day of February, 1935 said Board rendered an award in the matter of the claim of plaintiff, and that the amount claimed by plaintiff and in controversy between him and defendant herein, and to which he is entitled for said injuries under said Act is in excess of One Thousand ($1000.00) Dollars, and that, by reason thereof, this court has jurisdiction of this cause."
Appellant did not demur to those allegations upon the ground that they were insufficient to confer jurisdiction upon the district court, nor did it file a plea in abatement of the suit upon that ground, or that the allegations of the jurisdictional amount were falsely made for the purpose of fraudulently conferring jurisdiction upon the court.
The uniform rule is, of course, that jurisdiction of courts, with reference to the amount in controversy, is determined by the pleadings of the plaintiffs, and we can see no reason why the rule does not apply to compensation cases.
And where, in a compensation case, such as this, the plaintiff in his pleading specifically alleges notice and the filing of a claim with the Industrial Accident Board (and a cause of action based thereon) for an amount within the jurisdiction of the court selected as the forum, the question of jurisdictional amount is thereby foreclosed, unless by timely verified plea in abatement, or to the jurisdiction, it is alleged and proved that the allegations of jurisdictional amount are false and were made for the purpose of fraudulently conferring jurisdiction upon the court. No such attack was made below in this case and the jurisdiction of the trial court over the amount in controversy cannot now be questioned here.
Specifically, as applied to compensation cases, allegations of jurisdictional amounts are deemed sufficient in this state if they identify the injuries and the claim sued on, with the injuries for which claim was made before and adjudicated by the Industrial Accident Board, supplemented by allegations that the injuries upon which that claim were based resulted in incapacity for which the statute provides compensation in an amount within the jurisdiction of the court. *Page 986 Texas Employers' Ins. Ass'n v. Moore, Tex. Civ. App. 46 S.W.2d 404; Id.,123 Tex. 302, 70 S.W.2d 702; Texas Employers' Ins. Ass'n v. Wright, Tex.Com.App., 97 S.W.2d 171; Travelers' Ins. Co. v. Peters, Tex.Com.App., 17 S.W.2d 457; Beal v. Ins. Co., Tex.Com.App., 55 S.W.2d 801; Texas Indemnity Ins. Co. v. Williamson, Tex. Civ. App. 109 S.W.2d 322; Texas Indemnity Ins. Co. v. White, Tex. Civ. App. 37 S.W.2d 277; Farris v. United States F. G. Co., Tex. Civ. App. 251 S.W. 612; Texas Employers' Ins. Ass'n v. Varner, Tex. Civ. App. 20 S.W.2d 334; Welch v. United States F. G. Co., Tex. Civ. App. 54 S.W.2d 1041; Texas Employers' Ins. Ass'n v. Finney, Tex. Civ. App. 45 S.W.2d 298.
In this case the identity of the injuries for which claim was made by appellee before the Accident Board with the injuries for which recovery was sought in the trial court, and the identity of the claim filed with the board and that sued on herein, were clearly established in appellee's pleadings and by the proof thereunder.
The injuries described in appellee's claim before the board were obviously of a serious nature, and were clearly general in character, as distinguished from specific injuries for which specific and limited compensation is provided in the Compensation Act. The statute provides that, in cases of general injury, the claimant is entitled, upon proof, to compensation as for total and permanent incapacity, according to the evidence adduced before the board, or, in case of appeal, before the court; that is to say, upon a claim for general injuries the claimant may establish by proof, that the claimant's injuries resulted in permanent total incapacity, and the board may award compensation aggregating the maximum amount provided by statute in such cases, to wit, 60 per cent. of the claimant's average wage, for a period of 401 weeks. In this case appellee filed his claim with the board for compensation for general injuries, alleging in his claim that his average wage was $77.50 per month. The claim, therefore, was for compensation for injuries, which, if found upon a hearing to have resulted in permanent total incapacity, would entitle appellee to a maximum award of 60 per cent. of $77.50 per month, for a period of 401 weeks. The jury in this case found that appellee's injury resulted in his total and permanent incapacity, and that his average wage was $18 per week, and he was awarded a lump-sum judgment upon that basis. So, appellee's claim before the board was in fact for an amount cognizable by the district court, in accordance with the allegation in appellee's petition. It was identical with the claim sued on, and was so alleged and proved by appellee.
The authorities heretofore cited establish this rule for ascertaining the amount of a compensation claim. That rule is available both to the insurance carrier and the employee, alike. If the claim is for a specific injury, it is for compensation limited only by the maximum amount provided by statute for incapacity resulting from such specific injury; if for general injuries, the claimant may prove and recover an award, or, on appeal, a judgment, for compensation as for total and permanent incapacity, and for the maximum amount provided by statute for such incapacity, which in any conceivable case would bring it within the jurisdiction of the district court. It is the character of the injury, as being specific or general, which, after all, determines jurisdiction. A general description, in the claim before the board, of a "general" injury, is deemed sufficient, if cases arising under the Act are to be construed, as they should be, with that liberality to which remedies of that character are entitled in law and justice. And on appeal to the district court a general injury, however loosely described in the claim, may be enlarged to include every ache, pain, ailment, or disability growing out of the injury identified in the claim. Hartford Accident Ind. Ins. Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205, 207; Commercial Casualty Ins. Co. v. Hilton, Tex. Civ. App. 55 S.W.2d 120; American Employers' Ins. Co. v. Scott, Tex. Civ. App. 33 S.W.2d 845; Indemnity Ins. Co. v. Harris, Tex. Civ. App. 53 S.W.2d 631, and authorities there cited. It is for this reason, if there were no other, that jurisdiction is determined by the character of the injury designated in the original claim, and not by a strict construction of the language, or strained or harsh restriction upon the scope and effect, of the claim.
In support of its contention appellant cites, and we will now discuss in their order: Texas Indemnity Ins. Co. v. Beal, Tex. Civ. App.35 S.W.2d 1054; Beal v. Texas Ind. Ins. Co., Tex.Com.App., 55 S.W.2d 801; Commercial Standard Ins. Co. v. Robinson, Tex. Civ. App. 91 S.W.2d 1147,1150; Georgia Casualty Co. v. Griesenbeck, Tex. Civ. App. 210 S.W. 273,275; Mingus v. Wadley, 115 Tex. 551, *Page 987 285 S.W. 1084; Texas Employers' Ins. Ass'n v. Nunamaker, Tex. Civ. App.267 S.W. 749, 751; Texas Indemnity Ins. Co. v. Pemberton, Tex. Civ. App.9 S.W.2d 65, 67.
We construe the opinion in the Beal Case, the first cited by appellant, to negative, rather than support, appellant's contentions here. In that case the contents of the claim with the Industrial Accident Board were not shown in the claimant's petition. He simply alleged that he had received an injury (by a truck "turning over on" him) which totally and permanently incapacitated him; that he had filed "due claim" with the board; described the award made by the board, and attached a copy thereof to his petition, "for jurisdictional purposes." The award did not show the "amount claimed by the" claimant before the board, "nor the character of injury for which compensation was there claimed," but did show that the board considered the claim, and awarded compensation as for total permanent incapacity for a period of 26 weeks, at $14.37 per week, or a total award of $373.62. The trial court overruled the general demurrer to the claimant's petition, and upon trial rendered judgment for the claimant for permanent total incapacity, or a lump-sum judgment for $5,359.39. The insurance carrier appealed, and that judgment was reversed by the El Paso Court of Civil Appeals, which held that the general demurrer to the claimant's petition should have been sustained by the trial court, on the ground that it did not allege the filing of a claim before the board for an amount within the jurisdiction of the district court. Texas Ind. Ins. Co. v. Beal, Tex. Civ. App. 35 S.W.2d 1054. The Supreme Court granted writ of error, and in an opinion by the Commission of Appeals the judgment of the Court of Civil Appeals was reversed and that of the district court affirmed. Beal v. Ind. Ins. Co., 55 S.W.2d 801, 802. It was said in the opinion of the Commission of Appeals, by Judge Leddy, that
"The award referred to does not show the amount claimed by plaintiff in error before the Industrial Accident Board, nor the character of injury for which compensation was there claimed. It shows merely that the board considered plaintiff in error's claim for compensation, and awarded him a recovery for total incapacity for a period of 26 weeks, adjudging that he was entitled to recover from defendant in error compensation at the rate of $14.37 per week for said period, amounting to a total of $373.62.
"The allowance under the terms of the Compensation Law for the character of injury alleged, based upon plaintiff in error's average weekly wage, was a sum within the jurisdiction of the district court.
"It is our conclusion that the Court of Civil Appeals was in error in holding that plaintiff in error's petition was subject to a general demurrer."
It was said, further, that jurisdiction of the trial court may be shown by attaching a copy of the award made by the Accident Board, "provided such award discloses the amount involved in the claim made before the board. Or he may set forth by direct allegations in his petition that theamount claimed by him before the board was a sum within the jurisdictionof the court in which the suit is brought. But it is not absolutely essential, in order to show jurisdiction, that the amount of the claim before the board be alleged in actual dollars and cents. It is sufficient if it be shown that the claim for compensation before the board was for an injury for which the Compensation Law fixes a period of compensation which, when multiplied by the average weekly wage of the claimant, would result in a sum within the jurisdiction of the court in which the suit is brought." The rule is stated, in the language above quoted, in Travelers' Ins. Co. v. Peters, Tex.Com.App., 17 S.W.2d 457, and Commercial Standard Ins. Co. v. Robinson, supra, also cited by appellant.
We think the general effect of the decision in the Beal Case supports our conclusion that where the claim filed with the board is shown to have been for a general injury, the amount there involved is ascertainable from the maximum amount of compensation provided in the statutes for general injury, and that where, as in this case, the claimant's petition in the district court alleges a claim filed before the Board for general injury, and that such injury resulted in incapacity compensable in an amount within the jurisdiction of that court, it is sufficient, in the absence of a sustained plea in abatement, or to the jurisdiction, to sustain that jurisdiction.
The next case cited by appellant is the Robinson Case, supra. That case differs from this in several respects, chief among *Page 988 which is the fact that jurisdiction was determined upon a plea in abatement, filed and urged in due course of pleading. The general effect of the language of the opinion in that case may be said to be in conflict with the holding here announced, notwithstanding the court in that case quotes with approval, the holding quoted above from the Beal Case, and in Travelers' Ins. Co. v. Peters, supra, that the claimant may show jurisdiction by attaching the award of the board, "or he may set forth by direct allegations in his petition [as was done in the instant case] that the amount claimed by him before the board was a sum within the jurisdiction of the court in which the suit is brought." The Robinson Case is of doubtful authority, however, since the Supreme Court has granted writ of error therein, upon an omnibus assignment of error involving several questions of law, including that here under consideration.
In the Griesenbeck Case, next cited by appellant, the insurance carrier filed a plea to the jurisdiction of the district court, upon the ground that it appeared from the claimant's petition that the amount in controversy was less than $500, and therefore not within the court's jurisdiction. Upon a hearing the trial court sustained the plea, and dismissed the cause for want of jurisdiction. The El Paso Court of Civil Appeals reversed that judgment, and it does not appear that writ of error was applied for. In that case the relatives of the employee brought suit for compensation for his death resulting from injuries sustained by him in the course of his employment. The court held that the "amountinvolved is the total amount to which the beneficiary would be entitledunder the provisions of the act, if liability be shown, which in this case exceeds $2,000," and, further, that "the issue to be tried by the court is as to" the insurer's "liability for the full amount that might be recovered under the statute; and, as * * * that amount was over $2,000, the district court had jurisdiction to try the case." We think the Griesenbeck Case supports our conclusion in this case.
Appellant next cites Mingus v. Wadley, supra. The controlling holding in that case is that jurisdiction in the trial court failed because the claimant did not in his petition allege facts showing venue in the county in which the suit was filed. The question of jurisdictionalamount was in no way before the court in that case.
The Nunamaker Case, next cited by appellant, involved suit filed in the county court, for compensation for a specific injury, for which the statute prescribes a definite sum, determinable by the amount of compensation provided by the statute for such specific injury. In that case the claim was for loss of an arm or hand, which, if sustained by the evidence, was compensable according to the claimant's weekly wage, which was stated in the claim. It was held that to ascertain the jurisdictional amount, it was only necessary to multiply the weekly wage by the number of weeks allowed by the statute as compensation for that specific injury. The Industrial Accident Board awarded the claimant compensation for only $803. The insurance carrier appealed to the county court, where the claimant filed a plea in abatement of the insurer's suit, upon the ground that the claim filed with the board was for injuries and incapacity entitling him to compensation in an amount in excess of the jurisdiction of the county court. The trial court sustained the plea and dismissed the suit, and the insurer appealed to the Waco Court of Civil Appeals, which affirmed the trial court's judgment, holding that "the maximum amount of compensation allowed by the provisions of said act for total and permanent loss of the use of an arm was the amount in controversy therein, and the county court at law did not have jurisdiction to hear and determine such issue." We think that holding supports the jurisdiction of the district court in the instant case. For, if jurisdiction in a claim for specific injury is determinable by the maximum amount of compensation provided by statute for such injury, computed upon the claimant's weekly wage, then, by the same token, jurisdiction over a claim for apparently serious general injury is determinable by the maximum amount that may be awarded by the board, or a court, upon a claim for general injury, which may be shown by evidence to have resulted in total and permanent incapacity; and where it is alleged in the petition, as was done here, that the claim was for an injury compensable in an amount within the jurisdiction of the district court, that allegation ipso facto fixed the jurisdiction of that court, which could be defeated only by a sustained plea that the allegation was false and was made for the purpose of fraudulently conferring jurisdiction, as was done in the *Page 989 Nunamaker Case, and the Griesenbeck and Robinson Cases, all cited by appellant. We construe the decision in the Nunamaker Case as clearly upholding our conclusions in this case.
The Pemberton Case is the last cited by appellant. The case is not a satisfactory authority upon this appeal. It goes off on a failure of the claimant's pleadings, and holds that the insurance company's numerous "contentions, in the main, are sound." Insofar as it bears upon the question here presented, the decision in that case is that the claimant did not allege that he had filed a claim before the Industrial Accident Board for an amount cognizable in the district court. That point is not involved here, for appellee specifically alleged all the elements of a jurisdictional claim. The Pemberton Case did not get into the Supreme Court.
It is my opinion, upon the authorities cited, and for the reasons herein stated, as well as those so well stated by Justice Murray, under both the pleadings and evidence, the trial court acquired jurisdiction of appellee's appeal from the ruling of the Industrial Accident Board.