1. — Employer's Liability Act — Penalty for Nonpayment of Claim.
Article 4746, Revised Statutes, prescribing a penalty of 12 per cent damages in case of refusal by certain insurance companies to pay losses within thirty days after demand, does not apply to claims against the Texas Employers Insurance Association arising under the Act of April 16, 1913 (Laws, 33d Leg., pp. 429-438). Such Act carefully specifies the compensation to be awarded an injured employee or his beneficiaries thereunder, and, until amended (1917) makes no provision for penalties. Besides, being a penal statute, it cannot be applied to liabilities not existing at the time of its enactment, but created by a subsequent statute and not falling within its terms. (Pp. 143, 144).
2. — Same — Right to Require Suit.
Section 5, of part, 2 of the Act of April 16, 1913, gives the interested party the right to require suit in the courts upon any claim against him under the Act, and this unconditionally and without subjection to a penalty such as is imposed by Article 4746, Revised Statutes. (P. 144).
3. — Industrial Accident Board — Jurisdiction — Notice of Refusal to Abide Decision.
The statute requires no notice by one who has filed his claim before the Industrial Accident Board of his refusal to abide by its decision, as a condition precedent to his bringing suit thereon in the court. Where he brought such suit before the Board had taken action on his claim, its pendency before the Board did not deprive the court of jurisdiction. (P. 144).
4. — Practice on Appeal — Plea to Jurisdiction.
A plea first filed in the Supreme Court, and attacking the jurisdiction of the trial and appellate courts on the ground that the cause of action was one of exclusively admiralty jurisdiction in the United States court, the injury accruing on navigable tide waters, is denied for want of adequate support in facts pleaded, proven or verified. (P. 144).
MR. JUSTICE GREENWOOD delivered the opinion of the court.
Defendants in error, as the legal beneficiaries of Adolph Nelson, a deceased employee of the Standard American Dredging Company, recovered a judgment in the District Court of Galveston County, for $1981.70, against plaintiffs in error as insurers against the liability of said Company to its employees under the Texas Employers' Liability Act. The judgment represented compensation for the employee's death, without penalty or attorney's fee. On appeal to the Galveston Court of Civil Appeals the judgment of the District Court was reformed so as to award defendants in error, in addition to their recovery of $1981.70, twelve per cent damages because of the failure of plaintiffs in error to pay the claim of defendants in error for more than thirty days after demand, and before the institution of suit. 223 S.W. 298.
The writ of error was granted because we believed the Court of Civil Appeals had erred in increasing the amount of defendants in error's recovery by the twelve per cent damages.
Defendants in error offered in this court to remit the twelve per cent damages. Plaintiffs in error contested the right of defendants in error to have the judgment of the Court of Civil Appeals reversed, on the offer to remit, and to have the judgment of the trial court affirmed, and thereupon this court ordered the cause advanced.
Adolph Nelson was accidentally drowned in the course of his employment by the Dredging Company in 1915, and liability for his death accrued under the Employers' Liability Act of 1913, before the adoption of the amendment of March 28, 1917.
The Act of 1913 contained no provision for the payment of penalties or attorney's fee, as does the amendment of 1917. The Court of Civil Appeals was of the opinion that Article 4746 of Vernon's Sayles' Texas Civil Statutes authorized the imposition of the twelve per cent penalty.
Article 4746 was enacted in its present form in 1909, before the Legislature imposed liability to employees for certain industrial accidents on the agency termed the Texas Employers' Insurance Association or on the companies specified in Article 5246.
The careful specification by the Legislature in the Act of 1913 of the compensation to be awarded the injured employee or his beneficiaries, in the event of death, would seem to exclude the intent to allow additional recoveries by the employee or his beneficiaries.
However, the fact that it cannot be held that the Legislature clearly and plainly intended the terms of Article 4746 to apply to liabilities of a kind having no existence under the law of the State when the article was adopted precludes our extending the article so as to apply to such novel liabilities. Otherwise, we would be enforcing a penal statute, when it did not clearly apply, or enforcing it against one not manifestly within its terms, in violation of the established rules of construction of penal statutes. Carpenter v. Trinity and B.V. Ry. Co., 108 Tex. 53, 54, 1 L.R.A., 1449, 184 S.W. 186; Aetna Life Insurance Co. v. Parker Co., 96 Tex. 291, 294, 72 S.W. 168, 580, 621; Houston E. W.T. Ry. Co. v. Campbell, 91 Tex. 557, 43 L.R.A., 225, 45 S.W. 2.
The purpose of penalties like those here involved is punishment for a civil wrong. It cannot be a wrong to exercise an unconditional and express statutory right. Section 5, of the Act of 1913, conferred the right on any interested party to require suit to be brought for the determination of any question arising under the Act which was not settled by agreement. Article 5246q Vernon's Sayles' Texas Civil Statutes of 1914. The right was not qualified by imposing a penalty upon a party in the event of a determination adversely to him. In refusing to pay the claim of defendants in error until it was established in a court of competent jurisdiction, plaintiffs in error exercised a right plainly and unqualifiedly conferred upon them by the statute; and their act cannot be made the basis for the imposition of a penalty.
Plaintiffs in error insist that defendants in error were not entitled to maintain their suit in the absence of notice to the Industrial Accident Board of refusal to abide by the Board's final decision. We thought, when we granted the writ, as we conclude now, that the statute requires no such notice as a condition precedent to suit.
The direction that the board should "proceed no further toward the adjustment of such claim," when any interested party did not consent to abide by the board's final decision, makes obvious that it was not necessary to await such final decision before suing or requiring the filing of suit. Art. 5246q Vernon's Sayles' Texas Civil Statutes.
The assignment questioning the jurisdiction of the trial and appellate courts in this case is overruled, for the want of requisite support in facts plead, proven or verified.
The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court is affirmed.
Reversed and judgment of District Court affirmed.