Court of Civil Appeals of Texas, Beaumont.
AMERICAN EMPLOYERS INS. CO.
v.
DUE.
No. 4069.
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Nov. 13, 1942.
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Rehearing Denied Dec. 2, 1942.
Attorneys & Firms
*161 King & Reinstra, of Beaumont, for appellant.
Glenn Faver and B. A. Hamilton, both of Jasper, for appellee.
Opinion
O’QUINN, Justice.
This is a workman’s compensation case, with appellee, William Glenn Due, the employee, and appellant, American Employers Insurance Company, the compensation insurance carrier. Appellee plead an average daily wage of $2.15 or greater, as might be shown by the evidence. He prayed for a weekly compensation of $7.44 for 401 weeks as for total, permanent disability. By the affirmative allegations of his petition he sought to limit his recovery to $2,999, and in his prayer limited his recovery to that sum. He alleged that if the proof showed a compensation rate in excess of $7.44 per week, he waived all excess above $2,999.99. In due time, and in the form and manner required by law, appellant filed his petition and bond, praying that this case be removed to Federal Court, alleging that the matter in controversy exceeded the sum or value of $3,000. The prayer for removal was denied, and on trial judgment was for appellee against appellant for the relief prayed for, limited to the amount prayed for.
We sustain appellant’s point that the matter in controversy on the allegations of appellee’s petition, exceeded the value of $3,000. His pleading of an average daily wage of $2.15, or greater as might be shown by the evidence, was broad enough to admit proof of the actual compensation rate. The compensation rate, as shown by the allegations of the petition and the proof, was $11.56 per week, entitling appellee to a recovery, on the allegations of the petition of $4,635.56.
But appellee says that, as a matter of law, his recovery was limited to an amount not in excess of $2,999. This contention is denied. By Texas Employers Ins. Ass’n v. Miller, Tex.Civ.App., 130 S.W.2d 893.
There is no allegation in the petition that the Industrial Accident Board had approved a waiver by appellee, reducing his compensation from the sum of $4,635.56, to which he was entitled under his pleadings, to the sum of $2,999. The allegations of his petition showed affirmatively that no court of competent jurisdiction had approved such a waiver by him. Certainly appellee could not, by a simple waiver not authorized by the Board or a court of competent jurisdiction, take his claim out of the coverage of our Workmen’s Compensation Act on this point. So, since under our compensation law appellant was entitled to the amount of compensation plead by his petition and supported by his evidence, which exceeded in value $3,000, the conclusion must follow that the amount in controversy exceeded the value of $3,000.
It follows that the judgment of the lower court should be reversed and this cause remanded with instructions that the proper orders be entered, transferring this case to the Federal Court, and this without restriction or limitation on appellee’s right to amend his petition.
Reversed and remanded with instructions.
On Rehearing.
We agree with appellee that he had the right to sue in the State district court for a sum less than the jurisdictional amount of the federal court, and thereby defeat federal court jurisdiction. Farmers’ Bank of Alexanderia v. John Hooff, 7 Pet. 168, 169, 8 L.Ed. 646, “The real matter in controversy is the debt claimed in the bill.” The “debt” claimed by appellee in his petition exceeded $3,000. He sought to reduce his claim below the jurisdiction of the federal court by voluntarily waiving the excess above $2,999. We hold that his plea of waiver was void, and being void the “debt” exceeds $3,000.
But appellee asserts his legal right to “abandon” part of his claim without the approval of the Court or the Board, as against our construction of Sec. 14 of Art. 8306 is applicable to an agreement or waiver made by the employee after he was injured. In the Lightfoot case the Supreme Court permitted the filing of the remittitur, thereby approving the claimant’s offer of waiver. If it be conceded that the trial judge in the case at bar by his judgment approved the offer of waiver, the concession is immaterial. Appellant’s right to remove to the federal court became vested as of the moment it filed its petition for removal, which was before the court entered its order approving the waiver and at a time when the waiver was not binding on either appellee or appellant.
On the point of waiver, it is asserted that appellee fixed the matter in controversy by the statement in his prayer “In no event does he seek to recover more than $2,999.” This proposition would be sound if appellee had the right to waive his claim down to the amount not to exceed $2,999. In support of its proposition, appellant cites Maryland Casualty Co. v. Sledge, Tex.Civ.App., 46 S.W.2d 442, opinion by this court. That case is not in point on the issue presented by this appeal. That case was turned upon the allegations of the petition; it did not appear upon the face of the petition that the claimant had attempted to waive any part of his claim. We simply held that the measure of the claimant’s relief was determined by the allegations of his petition, and that is the very point decided by us in our original opinion in the case at bar.
The motion for rehearing is overruled.