*1 TEXAS CASUALTY INSURANCE COMPANY, Petitioner, BEASLEY, Respondent.
Miles Clifford
No. A-10376.
Supreme of Texas.
March
Rehearing Denied June *2 here is whether decided a matter of law at the trial fails as
adduced good cause. show satisfy enough the statu It is not tory requirement prove for failure to file existed the six- period; month workman owes prosecu continuing prove tion of and must his cause for failure file continued to the filing. date of Insurance Texas Hancox, Ass’n v. 162 Tex. 349 S.W.2d 102; Casualty Consolidated Insurance Co. 299; Perkins, 154 Tex. 279 S.W.2d Dean, Petroleum Austin, Gay, petitioner. Coleman Texas Williamson Indemnity Ins. City, for Ferguson, Thomas C. Johnson Beasley’s proof issue must be on the respondent. tested that rule. consulted and was examined CALVERT, Chief Justice. three different doctors within a brief following injury. of time Acting his compensation is a case. workmen’s advice, May their surgery he submitted to on response special found issues 8, 1961, for the removal of a herniated disc. Beasley, the that Miles Clifford He returned to his for Premier work sustained an accidental in the course and, spite eight later weeks of almost employment perma produced of his pain constant the area of nent, ren incapacity. total The trial court employment February continued in that dered on the verdict quit job 1962. He on with Premier per compensation $35.00 employ- advice of his doctor and obtained week, paid. The previously less benefits February 15,1962, ment on a ranch on where Appeals Court of Civil affirmed. 381 S.W. working still at the time of trial. judgments 2d 236. We reverse the He strained or wrenched back in trial court of Civil and the Court hospitalized traction for and render that the claimant take days. five He was released from nothing. July on April sustained a back 20,1962, ranch, employ- while in the On the owner of the course of his June Quarries, attorney, ment Premier Granite Texas who was also an wrote a letter to Quarries possible assured. filed Premier Granite about a He compensation compensation Beasley. Premier benefits the Industrial 13,1962, manager referred the the claims Accident Board on November nine- letter to Casualty Company. teen Texas man- months after the date claims replied ager July Under letter 4a of Art. Sec. suggested pleased Statutes, that he would be to receive Vernon’s Texas Civil compromise regard kind of offer with barred benefits is because Beasley’s July his failure claim. Between to file his within months August year, the middle of of that unless he had telephone employer calls made one or two delay. only question cause for his Casualty, App., Ordi manager the claims of Texas writ refused. his hos- probably narily, and one after whether a claimant has used pitalization. August, question middle of of fact to be Near the is a Texas judge. of interest arose between determined or trial conflict McDonald, of Employers’ carrier Tex. Ass’n v. *3 Beasley’s of employer. part In the latter Civ.App., 238 writ refused. S.W.2d employer Beasley However, Beasley’s particular a August, notified the evidence in case conflict, diligence could may him that he lack as the of advised lead to of negotiations Texas longer conclusion, event no continue in which reasonable Casualty, attor- and referred to another question is a matter of law. to decided as Co., con- ney. Beasley Safety Around 146 Tex. October Hawkins v. been attorney to whom he had hold sulted We that the 372. conclusion, claim. filed the requires referred who thereafter in this a evidence case law, the claimant did as a matter of delaying The claimant’s reason diligence degree not exercise of filing principally of his claim is to be found reasonably pru his claim a filing of he He testimony. in his own testified that person under the dent would have exercised assured before his was same or similar circumstances. May 11,1961, would surgery tion new”; of spite make him “as and in as Beasley knew The reflects that evidence pain the fact that he continued Casualty paid file a claim. Texas back and leg, he continued believe weekly compensation eleven benefits for get he would well to the time that he following his Dur- or twelve weeks go July, back to the lawyer to see a ing period Beasley went going which time he realized that was not filing of a with reference to the get well claim. have to file a not need to file one was advised did He testified further he did not want drawing compensation. as as he long was a claim if be all going assert he was “to may other- the advice However erroneous right.” been, certainly it confirmed wise have compensa- when
necessity filing a claim deciding purpose ceased, For the of payments if he should be dis- tion question us, assume, spite will knowledge, we without of there is in abled. In deciding, cause for file a failure to no evidence he or his em- the record hospitalized steps claim existed until ployer-attorney get was took claim July, Safety July, Hawkins Casu at which See filed from the middle of Co., alty 381, 207 The going get 146 Tex. S.W.2d 370. time he concluded he was question good well, part August, then narrows to Did this: to the latter and no evi- filing cause file the he did toward anything failure to claim continue dence that July, September. to exist from the middle of There is during the month of the claim was filed November 1962? advised his em- question The answer to de ployer-attorney turns on the claim had been gree get filed, filed. necessity used to the claim or discussed with him charged prose advisability was with the filing a claim. The evidence cuting his dili degree conflicting dealing claim with that as to whether reasonably prudent agent employer gence person which a Texas claim Beasley’s acting would have exercised the same as a as attor- was friend or immaterial; ney. Texas relationship similar circumstances. Watson v. The Co., Indemnity agent. Ins. no evidence that S.W.2d There is 989; Safety prevented physical Hawkins v. con- employment Tex. Acci Hartford dition or the duties Hardin, Indemnity & filing dent Tex.Civ. the month of September. SMITH, controlling fact is that no (dissenting). Justice steps for two get were taken filed respectfully pro- I dissent. long for and a half months. That is too pounds question: “Did nothing. prudent reasonably person to do failure file the to exist claim continue Ass’n, See Jones until the claim middle It becomes 13,1962?” was filed Then on November cir- unnecessary to under the decide whether ques- Court concludes that the answer to un- cumstances five on the used to turns investigation reasonable time for get the claim filed. attorney who filed it. question rule announced being controlling placed Beasley’s case
The Court of Civil held that the *4 entirely light in an than record different the presented the fact issue on issue a reflects. The Court consider has failed to diligence. holding, In the making of that the evidence most of the Employers’ court favorable primarily relied on Texas jury the the The good on of cause. McDonald, Tex.Civ.App., issue Ins. Ass’n v. 238 trial heard on the issue court the evidence writ the evi- S.W.2d While refused. good The cause. will dence evidence which good in that cause case is some discussed later for the respects afforded the case, basis similar the evidence in this Special and respects submission Issues number 17 distinctly it is other dissimilar. 18.1 These issues in the In answered thought papers that case the claimant found the affirmative. that filed with Accident Industrial Board up believed until thirty days within a claim the. filed, date the compensation; here, claim was that the the knew claimant May, repair personal he had a “would so the not filed case claim. that a injuries by him, April any, sustained if on promptly claim for was filed any seri- would not sustain negotia- the termination of settlement ; disability here, ous after the he recovered from steps tions the claimant took no what- operation.” The belief prosecute thirty ever to found such until constituted cause. negotia- after termination of settlement tions, and offered no evidence to excuse his “good does statute define cause.” failure so. to do conclude We “good The trial court cause” as defined case is ruled McDonald. meaning cross-plaintiff, “whether or not the prosecution motion for an instructed Miles Beasley, Clifford verdict subsequent judg- and its compensation, motion for degree used that ment notwithstanding the verdict ordinary should man of a granted. have been judgments prudence, the reasonable the situated as was Court of cross-plaintiff, Civil court trial are used under would have reversed, judgment is here rendered that same or similar circumstances.” plaintiff take nothing. definition meets the announced test * * * you 1. “SPECIAL ISSUE NO. 17: Do “SPECIAL ISSUE NO. 18: preponderance you preponderance find from a of the evidence Do find from belief, any, Miles Clifford Cross-Plaintiff if evidence that consti- operation per believed cause tuted term is defined May, 1961, formed would so herein failure Cross-Plaintiff’s repair personal sustained file his claim Industrial Accident him, any, April the time same disability not sustain serious filed? operation? after he recovered from the ‘Yes’ “Answer ‘No’ “Answer, Jury, “We, ‘Yes’ or ‘No’ Yes” answer: Jury, “We, the answer: Yes Safety of the trial court in such cases as Hawkins courts power sub upheld. has no 370 be This court 207 S.W.2d the trier for that of Insurance stitute (1948); Consolidated its facts. Perkins, 154 Tex. In Accident & (1955); and Hartford deciding, assumes, without The Court Hardin, Tex.Civ.App. (1952), demnity Co. v. April “good cause” existed refused. The Haw writ position that I take the kins and Hardin hold that ordi cases also he filed continuously until existed narily has used whether the claimant went claim. Prior to issue, required is a fact April Dansby, Dr. who first saw question “may be determined that the Dr. Hoerster Beasley first saw against as matter of law claimant Dr. the accident. or two after evidence, favorably most when construed en- X-Ray diagnosis Dansby said that an for the no other conclu admits Beasley was determine that abled him to at least recognized sion.” It has been well disc between suffering from a herniated Ass’n since the case of Texas vertebrae, referred 4th and 5th lumbar Guidry, Day San Hinchey and to Drs. pro (1937), that the of six months Antonio, spinal cord was who found vided in the statute for the Ralph Beasley to Dr. involved and referred begins the Industrial Accident Board Munslow, Munslow neurosurgeon. Dr. *5 to run on the date of the enter Beasley return Llano and advised hospital with traction The strict and be “treated § 4a,;2 manner.” injury get relief in that given that notice of must be with see he could Dansby hos- days, Beasley in who compensation and claim returned to Dr. applied injuries pitalized traction. shall be made within 6 months were him relief, and the not invoked before the Industrial Accident treatment afforded no Beasley before in was told Board. The Board entered its award tion followed. claimant, “good new” as favor of the that he would appealed Dans- he the doctors. Dr. order of the and that believed adverse “highly Dr. Munslow was to the District In the testified that Court. District Court, recovery. There Beasley, cross-plaintiff, pleaded optimistic” as about any at “good Munslow ever that cause” existed is no evidence that Dr. for his failure Dansby 7, 1962, opinion, Dr. prior changed file his claim time or that his November he opinion the time was Beasley changed date formal claim his was filed. he Beasley testified that discharged “seeing” Beasley. his burden if the Court will fol going file a claim if he was low the rule that most did not want to the evidence July, he and that in Beasley “get right,” favorable to If all to be considered. misgivings there had about whether is some evidence that the claimant ex some that prudence, get well or not. He testified going ercised some care and then the July, in returned to the jury verdict of the when he on the issue of injury manifesta- 2. “Unless the Association or subscriber or of tbe first distinct disease; or, proceeding occupational in of an have notice of the injury or ease of death incapaci- physical or mental law shall be maintained unless a notice event ty, given (6) or after death shall have been to the thirty within six months physical or mental the removal of such Association subscriber within happening incapacity. (30) in- For cause the Board after the of an may, cases, waive the strict or the first distinct manifestation meritorious foregoing disease, compliance occupational limitations with the and unless a notice, of the claim as to made within the Board.” shall have been (6) months after occurrence put traction; 7,1962, did though that he even he had some not gave “misgivings” getting know whether the about well. “traction” “just lying relief or did there.” He said he case, supra, the Hardin claimant get some relief. It should be noted that injuries believed that her were trivial. The testimony any- there is no that the doctor or Court, effect, held the claimant did any place at the told fide belief would have a bona get that he would not well. The could ordinarily prudent person lead an to believe have concluded from the fact that the doctor temporary. were trivial put Beasley July, traction in Hardin, No doctor told the Mrs. he, doctor, still believed could contrary, that she would be well. To the recover. The gave no indication doctor executed a certificate in which would not recover until Decem- patient continuously stated “the had been ber, sup- 1962. These facts are sufficient to disabled, ‘according history discon- port “good cause” was shown ” January tinued In the Per- work 1951.’ to November 1962. There is no evi- case, supra, kins “good this Court held that any dence that of the doctors ever told Beas- cause” had not been The facts re- shown. ley prior time to November why flect Perkins we so held. We held that get would not well. The claim was rely knew the law and could not date, filed on this latter and it not until promise made four after months December, Henry Dr. Hoerster accident. The there facts are in no wise thought said he disability. had some comparable presented to the facts here Beasley, fact patient complete which show reliance of a some “misgivings” recovering about op- his doctor. He submitted to the conclusive that he relying upon was not still eration, confidently believing that he would his doctors’ statements that he in time regain strength and thereafter continue be as new. was not a gainful employment quali- for which he was malingerer but to contrary every act prior injuries. fied All of the facts was calculated money to save for the in- *6 jury, including Beasley’s were related to the surer. operation The cost of an and the anxiety regard and frustration expenses incident thereto were far less than filing of his claim. permanent award for total disability and in this case. desired to minimize the by claim paying for an the cost The facts in this case are much stronger of which would be much less than the support continuous cause than recovery by amount of the claimant based upon the facts relied of the upon permanent of total and- dis- hand, ability. Beasley agreed On the other cause cases referred to herein. It is true operation to the because he relied knew he should file a but representations by he also of the doctor. knew that had been told Since prior operated doctors at no time to November doctors who that he would be as they operation. Beasley changed indicated that had their as new after the opinion, ample had to con- beginning knew from the reason that his serious, rely upon clude that were continued to but he been told he would operation. It is My posi- be a new man after the our reasonably to construe the evidence most fa- is that acted as a vorably prudent person uphold for the submitting claimant and It being tion after verdict. was never the intention told the doctors that provisions Legislature of the would be a “new man” after the applicable and 4a in a situa- right rely that he had the § representation recognized tion where the insured li- until he filed medical weekly com- furnish reasonable paying surer should ability the extent of party injured work- hospital services for an pensation inducing the and following operation. during man the first four to an to submit certif- and, upon proper weekly employed aft- attorneys The action of the medical icates, additional should furnish history keeping er is in period of not exceed- total services relationship between the insured of the hospi- ing ninety-one and additional neg- attorneys the insurer. ex- period of not for a total tal services men ligent, but acted as reasonable days. The eighty hundred and ceeding one Therefore, the all the circumstances. limi- time amendment of 1957 removed charged with rule that the insured is liability for medi- on the insurer’s tation attorneys attorney negligence of his or abrogated cal and services cannot be invoked. weekly requirement for certificates show- Act of ing necessity therefor. The judgment of the trial court to section paragraph 1957also added a new Appeals should be affirmed. Court of Civil here, the pertinent 5 of Art. 8307. As FOR REHEARING ON MOTION paragraph provides that an award new judg-
the Industrial Accident or a any cost ment not include court shall CALVERT, Justice. expense or of medical or services rehearing Beasley his motion for calls injured em- actually furnished to an our attention to the fact that addition ployee prior or to the date of the award awarding recovery of benefits for judgment, final award and makes the first permanent, incapacity, total the trial court’s judgment judicata the insurer’s res judgment, affirmed of Civil liability expense for all such which could Appeals, recovery medical awarded a of the have been claimed to the date hospital expenses him in incurred judgment award or and of the issue suggests subject to have been affirmed to this extent. law paragraph to such items. The bases his to recover medi- provides further the Board shall hospital expenses cal and sentence on one continuing jurisdiction to successive make 8306,1 in section 7 of Art. as amended hospi- awards the cost medical and Ses., Reg. p. Acts Leg., 55th ch. tal the first final services incurred after 1186, as follows: award a six-month *7 “The association shall furnish such period immediately preceding each such aid, hospital services, nursing, 'medical award. services, chiropractic and medicines as may required reasonably be at the time Beasley assumes that his claim for of the time thereaft- hospital expenses governed is medical and er to cure and relieve from the effects by provision authorizes the naturally resulting injury.” awards, Board make and ar successive quoted sentence is but the first of sev- expenses gues that as such inasmuch quite lengthy eral in sec. in a act amend- 7 incurred six months of the date within ing several sections of Arts. 8307 and filed, the award on which his claim was upheld. therefor should be does Aside from the that this Court amendment, fact Before the 1957 sec. 7 of power change provided, 8306 that the in- not have constitutional generally, Art. 1. All Statutes. are Vernon’s Texas Civil references 40 statute, plain wording it is is not the case us. ob- That We are convinced, however, governed injured the claim is not the well an by
vious that
employee
expenses,
provision authorizing
pays
recog-
such
successive awards.
award;
obligation
is not
it
nizes his
and sues
award
a successive
therefor
for
them
content to
by
the first
made
Board with
owners are
look
award
compensa-
payment,
expenses
for
alone to
claim
him for
tion,
part
compensa-
for
making
and the law
become a
of his claim
governing
4a,
first
tion
Art.
meaning
awards controls.
of sec.
8307 and are barred when his claim for
weekly compensation
benefits
barred.
part
governing
A
law
require
making
of first
is the
awards
dealing
We have found no Texas case
ment in
4a
claims
sec.
of Art. 8307 that
question,
with this
but
hold
otherwise
for
be filed within six months
contrary
spirit
would be
lim-
unless
cause for
iting
Payments
obliga-
made or
statute.
expenses
late
filing be shown. Claims
by
tions incurred
an
for medi-
hospital
incurred
medical and
services
hospital
cal or
services are incidental to
may
prosecuted by
be
workman
statutory
his claim for
benefits
inca-
claims,
by
right
owners of the
pacity
usually
Leg-
and are
much less. The
recovery may
adjudicated by
the Board
hardly
islature can
intended
by
the courts in the
or in en
same
while
employee’s
weekly
ben-
tirely separate proceedings and suits.
efits
negligence
should be barred
Maryland Casualty
Hendrick Me
filing
therefor,
he should neverthe-
Hospital,
morial
141
169
less be entitled to
his medical and
recover
969
the Board
(1943).
this case
made
hospital expenses. Analagous and in ac-
only one
It
award.
directed
Cas
cord
holding
with our
Dornbos
are
ualty
payment
to make
the owners
Guggenheimer,
Bloch and
326 Mich.
hospital
the claims for medical and
serv
(1950);
N.W.2d 749
v. Nash
Coombs
ices and
certain
pay
bene
Co.,
Refrigeration
N.J.Misc.
Beasley.
fits to
The Board’s award was
A.2d
(1940);
v. Grafe
Trehern
Auto
vacated when Texas
filed its suit
Company,
232 Miss.