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Burkhart v. Concho Indus. Supply, Inc.
April 27, 1977
549 S.W.2d 469
Published Opinion

Burkhart v. Concho Indus. Supply, Inc.

Court of Civil Appeals of Texas, Austin.

Glen BURKHART, Appellant,



No. 12553.


April 13, 1977.


Rehearing Denied April 27, 1977.

Attorneys & Firms

*469 Galen A. Moeller, San Angelo, for appellant.

George S. Finley, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for appellee.


PHILLIPS, Chief Justice.

The question for decision is whether the filing and prosecution of a workmen’s compensation claim tolls the two-year statute of limitations applicable to a tort action arising out of the same injury. The trial court thought not and so held, and we affirm its judgment.

*470 The facts of this case are not in dispute. Appellant was injured in the course of his employment on September 14, 1973. On March 8, 1974, a compromise settlement of appellant’s workmen’s compensation claim was reached and on March 21, 1974, this settlement was approved by the Industrial Accident Board and the amount of the settlement was paid to appellant. On December 12, 1975, appellant brought his third-party suit against appellee alleging appellee to be guilty of negligence.

As the suit was brought after two years from the date of appellant’s injury, appellee contends that the suit was barred by the two-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958). We agree.

Prior to September 1, 1973, an injured party who was covered by workmen’s compensation was given an election to sue the third party or make a claim under the Workmen’s Compensation Act,1 Section 6a provided that the employee waived his claim for compensation if he proceeded against the third party prior to final determination of the compensation claim.

In Campbell the Court said, “We would strongly urge that the Legislature consider an amendment of Article 5526.”

In 1973 the Legislature amended Article 8307, Section 6a, to allow the employee to proceed either at law against some person other than the subscriber to recover damages or against the association for compensation under the law, and if the employee proceeds at law against the person other than the subscriber, then he cannot be held to have waived his rights to compensation under the law.

The statute of limitations, Article 5526, remained unchanged.

So far as we can ascertain, the case at bar is the first on the point presented since the amendment of Article 8307, Section 6a.

In our judgment, and we so hold, the amendment not only allows a compensation claim and third-party suit to be instituted simultaneously, but it also starts the running of the statute of limitations, Article 5526, from the time of the injury.2

Appellant contends that the Supreme Court’s pronouncements on the changes advocated in Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964).

The purpose of limitation statutes is to compel the assertion of claims within a reasonable period after their origin, and while the evidence upon which their enforcement or resistance rests is yet fresh in the minds of the parties or their witnesses. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975).

Since the third-party suit was brought more than two years after the date of the injury, the two-year statute of limitations was applicable and the judgment of the trial court is in all things affirmed.




Article 8306, et seq. (1967).


Collins, “Workmen’s Compensation,” 28 Sw.L.J. 131, 135 (1974). Also see Robinson v. Buckner Park, Inc., 547 S.W.2d 60, 61-62 (Tex.Civ.App.1977).

End of Document