113 S.W.2d 922 | Tex. App. | 1938
This appeal, in a cause arising under the Compensation Law, Vernon's Ann.Civ.St. art.
The court further decreed that a prior award on the same claim, entered by the Industrial Accident Board on the 3d day of January of 1936, be vacated, annulled, and held for naught.
The record and the briefs presented here are unduly long, entailing much unnecessary labor upon this tribunal, and it would serve no needful purpose to detail the attenuated extent of the likewise-long proceedings below.
The undisputed evidence showed that the appellee failed to file any claim for compensation with respect to such claimed injury and its consequences, as of January 23 of 1935, with the Industrial Accident Board, until October 22 of 1936, more than six months after his so declared-upon injury, and the first, if not indeed the main, controversy upon the appeal rages around the question of whether or not he both alleged and proved such "good cause," within the meaning of section 4a of R.S. art. 8307 for that omission, as entitled him to prosecute his claim for compensation anyway.
In apparent anticipation of that development, and recognizing in such event he was required to show that he had "used in the prosecution of his claim that degree of diligence which a man of ordinary prudence, situated as he was, would have used under the same or similar circumstances" (Maryland Casualty Co. v. Lopez, Tex. Civ. App.
Pursuant to answering pleadings of the appellant and full evidence for both sides, the issue thus raised was submitted as constituting an ultimate one of fact to the jury; the questions, together with the accompanying answers returned, being these:
"Special Issue No. 16: Do you find from a preponderance of the evidence that F. P. Mayfield informed plaintiff that Texas Creosoting Company could not furnish him medical treatment and that he would have to procure the same for himself ?" To which the jury answered: "We do."
"If you have answered Special Issue No. 16, `We do,' and only in that event, then answer Special Issue No. 16-A: Do you find from a preponderance of the evidence that such representation, if any was made, was believed by Juan Vargas to mean that the Texas Creosote Company did not carry Workmen's Compensation Insurance ?" To which the jury answered: "We do."
"If you have answered Special Issue No. 16-A, `We do,' and only in that event, then answer Special Issue No. 16-B: Do you find from a preponderance of the evidence, that a person of ordinary prudence, under the same or similar circumstances as was Juan Vargas, would have believed that such *924 representation meant that the Texas Creosote Company did not carry Workmen's Compensation Insurance?" To which the jury answered: "We do."
"If you have answered Special Issue Nos. 16 and 16-A, `We do,' and only in that event, then answer Special Issue No. 16-C: Do you find from a preponderance of the evidence that plaintiff believed such representations, if any, until October 19, 1935, when he went to see an attorney ?" To which the jury answered: "We do."
"If you have answered Special Issue No. 16-C, `We do,' and only in that event, then answer Special Issue No. 16-D: Do you find from a preponderance of the evidence that a person of ordinary prudence under the same or similar circumstances as was plaintiff, would have believed such representation until October 19, 1935, when he went to see an attorney?" To which the jury answered "We do not."
"If you have answered Special Issue No. 16, `We do,' and only in that event, then answer Special Issue No. 16-F: Do you find from a preponderance of the evidence that a person of ordinary prudence, under the same or similar circumstances as was plaintiff, would have relied upon such representations, if any were made ?" To which the jury answered: "We do not."
"If you have answered Special Issue No. 16, `We do,' and only in that event, then answer Special Issue No. 16-G: Do you find from a preponderance of the evidence that such representations, if any were made, constituted good cause for plaintiff's failure to file his claim for compensation before the Industrial Accident Board prior to October 22, 1935?" To which the jury answered: "We do."
"Special Issue No. 17: Do you find from a preponderance of the evidence that Joe Richardson informed plaintiff that Texas Creosoting Company carried no Workmen's Compensation Insurance?" To which the jury answered: "We do not."
To say nothing of appellant's many complaints in other respects against the inquiries so eliciting them, neither party has challenged any of these jury findings as being without evidence to support it.
Wherefore, even if the question of "good cause," as involved in this instance, should be regarded as one of fact rather than of law, it seems inescapable (construing all the applicable findings together) that the jury found for the appellant upon it — that is, it found on unattached evidence that the appellee acted as no person of ordinary prudence would have done in the same or similar circumstances in believing and relying upon Mayfield's representation to him until October 19 of 1935. That being true, since it had been so pleaded and tendered by the appellee upon his own terms, its determination against him seems to this court to have left him without any support for his cause, in consequence of which the learned trial court should have granted the motion appellant made there for a judgment in its favor on the verdict rendered; that action not having been taken, it becomes this court's duty to reverse the judgment in appellee's favor, and here render the cause for the appellant.
The conclusion stated is not undermined by the jury's quoted answer to special issue No. 16-G, to the effect that Mayfield's representations constituted "good cause" for the appellee's failure to file his claim before the Accident Board prior to October 22 of 1935, for the reason that what constituted "good cause" was plainly a question of law for the court rather than for the jury, and since that question was both beyond the jury's province to determine and incorrectly submitted without its legal meaning having in any way been defined by the court, as required by R.S. art. 2189, the answer thereto should have been disregarded below; since it was not, this court may now properly disregard it. Texas Employers Ins. Association v. Johnson, Tex. Civ. App.
Further discussion being deemed unnecessary, the appealed-from judgment will be reversed and the cause will be here rendered in appellant's favor.
Reversed and rendered.
*925PLEASANTS, C. J., absent.