(dissenting).
I am in full accord with the majority opinion, except in so far as it reverses and remands this cause on appellant’s assignment of error based on the action of the trial court in overruling his special exception to the defendant’s plea in bar, which presented the issue that a compensation settlement had been made with the injured employee, a sum of money had been paid to him, and he, in turn, had executed a “compensation settlement receipt,” reciting that he had “Received of United States Fidelity & Guaranty Company, insurer of The Texas Company, of Houston, Texas, the sum of $22.16 which sum together with weekly payments heretofore made to me (him) makes the total sum of $22.16 in full settlement of compensation under the Texas Employers’ Liability Act for all injuries sustained by (him) me on or about the 31st day of August, 1931, while in the employ of the said The Texas Company, (his) my incapacity having terminated. * * * ”
It must be observed that this suit is an appeal from a final ruling and award of the Industrial Accident Board, in which the board found, among other things, “that United States Fidelity & Guaranty Company con*1071fessed liability and made payments of compensation in tbe total sum of $22.16, in consideration of which C. W. Garrett made, executed and delivered a certain receipt to United States Fidelity & Guaranty Company and to the extent said payment discharged the liability of said United States Fidelity & Guaranty Company it is now accorded approval of the Board.” In due time appellant gave the required notice that he was not willing, and did not consent to abide by said final ruling and award, and that he likewise filed suit to set aside the entire action of the board.
Article S307, § 5, R. S. 1925, as amended by Acts 1931, c. 224, § 1 (Vernon’s Ann. Civ. St. art. 8307, § 5), provides that: “All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the Board. 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 and said Board shall proceed no further toward the adjustment of such claim, other than hereinafter provided. Whenever such suit is brought, the rights and liabilities of the parties thereto shall be determined by the provision of this law and the suit of the injured employee or person suing on account of the death of such employee shall be against the association if the employer of such injured or deceased employee at the time of such injury or death was a subscriber as defined in this law. If the final order of the Board is against the association, then the association and not the employer shall bring suit to set aside said final ruling and decision of the Board, if it so desires, and the Court shall in either event determine the issues in such cause instead of the Board upon trial de novo and the burden of proof shall be upon the party claiming compensation. * * * ”
True, the board had only approved the receipt “to the extent said payment discharged the liability of” appellee, but appellee was not' thereby deprived of the right to have a court of competent jurisdiction to hear the facts and circumstances surrounding the execution and delivery of it and pass upon its validity and effect. Nor was it necessary for appellee to plead that the compensation settlement receipt had been approved by the Industrial Accident Board, when, in fact, the board had not in toto done so. In my opinion, all that was necessary to bring the question before the court for determination was a showing that the receipt had been submitted to the board, that the board had acted upon it, and that an appeal had been properly perfected from the board’s final ruling thereon. This showing was made.
Furthermore, in order to establish the jurisdiction of the trial court, appellant himself was required to plead and to support such pleading by competent evidence, that proper application for compensation was made to the Industrial Accident Board, that a final award was made thereon by the board, and that notice of intention not to abide by the award had been given within twenty days from the date of the giving of such notice. Mingus v. Wadley et al., 115 Tex. 551, 285 S. W. 1084. Appellant made these necessary jurisdictional allegations in his pleading, and, in support thereof, offered in evidence the notice of injury, claim for compensation, final award of the Industrial Accident Board, and notice of his intention not to abide by such award.
In the case of Texas Employers’ Ins. Ass’n v. Knouff (Tex. Civ. App.) 271 S. W. 633, 636 (writ of error refused), the court said: “Appellee was not satisfied with such ruling or decision of the Board as a whole, and brought a suit to set it aside, but sought to limit the court in the trial of such suit to consideration of so much of such order or ruling only as was unsatisfactory to her. This, in our opinion, she was not authorized to do. We think her suit to set aside said ruling or decision of the board brought' the whole subject-matter of the same before the court for adjudication. Such, in fact, was the language of her petition, wherein she described the order sought to be set' aside by its date alone. It has been frequently said that suits to set aside rulings or decisions of the Industrial Accident Board, since trials therein are required to be de novo, are analogous to appeals from the judgments of justices of the peace to the county court. It has been continuously and consistently held in such cases that an appeal from a -judgment of the justice of the peace by one party to such judgment vacates the same, and brings the entire case, with all its parties and issues, before the county court for final disposition. Moore v. Jordan, 65 Tex. 395; Ingraham v. Rudolph, 55 Tex. Civ. App. 609, 119 S. W. 906; Lasater v. Streetman (Tex. Civ. App.) 154 S. W. 657. It therefore fol*1072lows that, in onr opinion, the district court not only had jurisdiction to determine whether the compromise agreement and settlement had been complied with, and whether the same was binding on appellee and conclusive of her claim for further compensation or not, but that it was necessary that such issue should be determined by the court in favor of the contention of appellee before she could be adjudged entitled to further compensation.”
In the case at bar, the execution and delivery of the compensation settlement receipt clearly presented a “question arising under this law.” It was “determined by the Board” in the award appealed from, approving the compensation settlement receipt only to the extent that it thereby discharged the liability of appellee, and awarded further compensation to appellant. Appellant and appellee were not satisfied with this award, and each perfected appeals therefrom, which served to bring all the questions which had been passed upon by the Industrial Accident Board before the district court for adjudication upon a trial de novo. In my opinion, the compensation settlement receipt is not subject to the particular exception levelled by appellant. It became one of the issues to be determined by the court upon trial.
Be that as it may, the error, if any, in overruling the exception, was certainly harmless. Every issue,-submitted to the jury, .as pointed out in the majority opinion, was found in favor of appellant, even to the finding that the “compensation settlement receipt” was executed and delivered without valuable . consideration, and that appellant did not. have sufficient mentality to ¡know the nature and the consequences of his act. Hence the compensation settlement, if improperly pleaded because of a failure to aver that it had been “approved” by the Industrial Accident Board, went out of the case as the result of the verdict of the jury, and not reflected in the. judgment.
I am unable to understand, as the situation presents itself to this court, how the action of the trial court in overruling the exception to the alleged insufficient pleadings could possibly present reversible error. The assignment is based alone on the action of the court in overruling appellant’s exception levelled at the insufficiency of ap-pellee’s plea in bar, and not what the plea actually contained, nor does the record disclose any objection made to the introduction in evidence of the compensation settlement receipt. The receipt was pleaded; it was offered in evidence; the jury found against appellee’s contention; and the judgment disclaims the issue. Therefore the error, if any, in overruling the exception, is clearly without prejudice; the verdict of the jury and the judgment being in favor of the party excepting. Salmons v. Thomas, 25 Tex. Civ. App. 422, 62 S. W. 102; Young v. State Bank, 54 Tex. Civ. App. 206, 117 S. W. 476; McKneely v. Beatty (Tex. Civ. App.) 161 S. W. 18; Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822, 824. In the last-cited case the Supreme Court said: “The office of a special exception is to require the plaintiff to state more fully, clearly, or specifically the facts on which he relies, in order that the defendant may prepare his evidence and guard against surprise. The improper overruling of a special exception may or may not result prejudicially, and we think the burden of showing prejudice is cast by rule 62a upon the appellant. If there is no objection to-improper evidence,’ and no showing that defendant was surprised or prevented from presenting his evidence, or otherwise injured by the improper ruling, we think the requirements of rule 62a have not been met, and the error must be deemed harmless.”
Again, should it be held that the compensation settlement receipt was not admissible for the purpose of showing a settlement in bar of appellant’s recovery, it was still admissible, in my opinion, both as an admission against interest and diminution of damages. Appellant made no objection whatever to its admission, and never at any time requested that it be admitted for limited purposes only.
It is a general rule in this state that a party may not, in a Court of Civil Appeals, urge objections which were not called to the attention of the trial court, and which were not ruled on, unless the error is one apparent upon the face of the record. Moreover, as stated in 3 Tex. Jur. § 129: “If proffered testimony is admissible with respect to any existent issue, it may not rightly be excluded because it is not admissible on all the issues; the objecting party must, at the time of admission, or later by special charge or motion, request its limitation. Thus if a party desires that certain testimony shall be limited merely to impeachment purposes it is his duty so to request at the time of its admission or later by motion or charge. In the absence of such a request he may not complain on appeal that the trial court was not more vigilant on his behalf than he was. (Citing: Blum Milling Company v. Moore-Seaver Grain Co. (Tex. Com. App.) 277 S. *1073W. 78; Shumard v. Johnson, 66 Tex. 70, 17 S.W. 398; Burrell Engineering & Construction Co. v. Grisier, 111 Tex. 477, 240 S. W. 899; Massie v. Hutchison, 110 Tex. 558, 222 S. W. 962; Behringer v. South Plains Coaches (Tex. Com. App.) 13 S.W.(2d) 334.”
I cannot conceive of any reason why the compensation settlement receipt reciting that, at the time it was executed, the injured party had fully recovered from his injury, was not admissible in evidence, in the light of the conflicting testimony raising that exact question. Indeed, pertinent testimony was offered in evidence that Garrett was not disabled by the injuries he sustained, and that his claim was simply a case of hysteria, or of willful malingering. On this issue, the declaration of the injured claimant, reciting in the receipt that “my incapacity having terminated,” clearly supports the issue, and was admissible as a declaration against interest, and again, in the absence of objection to its introduction, clearly presents no reversible error.
Appellee’s motion for rehearing should be sustained and the judgment of the lower court affirmed. I respectfully register my dissent