The opinion
On Second Motion for Rehearing.
Appellee, on second motion, insists that the judgment of the trial court should be affirmed, because, laying aside for the moment his contention that the settlement was fraudulent, there is no finding by the jury on a hotly disputed issue, namely, “Should the settlement be approved?”
The statute (article 8307, § 12, R. S.) provides that the insurer and the employee may in certain cases settle, compromise, or adjust liability “with the approval of the board”. See, also, article 8307, § 5, R. S., as amended by Acts 1931, c. 224, § 1 (Vernon’s Ann. Civ. St. art. 8307, § 5). These provisions have been construed to render such compromise of no binding effect unless so approved. Employers’ Indemnity v. Woods (Tex. Com. App.) 243 S. W. 1085 ; Maryland Cas. v. Hodges (C. C. A.) 49 F.(2d) 127 ; Farris v. United States F. & G. Co. (Tex. Civ. App.) 251 S. W. 612 .
This compromise was submitted to the board for its approval vel non. There was, as we have above said, the issue of fraud to be passed on. Also whether the case was subject to compromise under the statute. These questions were submitted to the jury and were discussed in our main opinion. As there pointed out, there was also the additional questibn before the Industrial Accident Board and on appeal before the district court of whether the board and the court would approve the settlement as one to the best interests of the public (which includes the appellee and his employer as well as appellant). An excellent dissertation on this duty of the board in such cases is found in the Woods Case, supra. This issue was passed on by the board and by appeal was a de novo matter for trial. Texas Employers’ Ins. Co. v. Rodgers (Tex. Civ. App.) 284 S. W. 968 ; Consolidated Underwriters v. Saxon (Tex. Com. App.) 265 S. W. 143 . The appealed order of the Industrial Accident Board was suspended. In the district court it is the object of a highly disputed testimony and thus could not be passed on by the court without a jury finding thereon. It was not submitted to the jury, nor was any request made therefor or objection to the charge for such failure. The approval or disapproval of the settlement thereupon passed completely out of the case. Ormsby v. Ratcliffe, 117 Tex. 242 , 1 S.W.(2d) 1084 . Without such approval the settlement was, under the unbroken line of authorities supra, of no force or effect, and the only judgment the court could enter, saving a possible discretion to grant a new trial, was a judgment for the plaintiff for his compensation.
The fact that this was a direct appeal from the order of the board upon presentation of the settlement proposition distinguishes it from such cases as Lumbermen’s Reciprocal Ass’n v. Day (Tex. Com. App.) 17 S.W.(2d) 1043 , where the settlement was approved and no appeal taken therefrom.
Likewise we do not have to consider such cases as Texas Employers’ Ins. Ass’n v. Stephens (Tex. Civ. App.) 22 S.W.(2d) 144, 145 ; Nobles v. Insurance Co. (Tex. Com. App.) 12 S.W.(2d) 199 , and New Amsterdam Co. v. Rutherford (Tex. Civ. App.) 26 S.W. (2d) 381 , as to where is the burden of proof for the result is the same wherever that burden lies.
It is suggested that the judgment recites that the court disapproves the settlement, and that the evidence of the injuries suffered by appellee, and which the jury verdict finds yet exist, were not seriously controverted, and that such evidence and verdict justify the court’s finding that the settlement is disapproved.
If the reasoning of either of these propositions is sound, the rehearing should be granted, our former judgment set aside, and the judgment of the trial court affirmed. It is so ordered.