140 S.W.2d 545 | Tex. App. | 1940
Lead Opinion
This suit was instituted in the district court by appellee, W. S. Fowler, in the nature of an appeal from the final ruling of the Industrial Accident Board upon a claim filed by him for compensation under the provisions of the Workmen’s Compensation Law, art. 8306 et seq., R.C.S.1925, Vernon’s Ann.Civ.St. art. 8306 et seq. The record shows appellee was employed by Phillips Petroleum Company for some twelve years prior to December 12, 1937, and that appellant was the compensation insurance carrier. Appellee alleged substantially that on
No claim for compensation was filed with the Industrial Accident Board by appellee for either of the alleged injuries at the times he received them but he was paid compensation by appellant for five weeks following the first injury and a report of both injuries was made to the Industrial Accident Board by his employer. Appellee alleged total permanent incapacity by reason of the injury of October 20, 1937, when the electric switch box exploded and, in the alternative, that if his incapacity did not result from that injury, then it was attributable to the accident and injury of March 5, 1936, or to a combination of both of the injuries. He alleged that, although he did not file with the Industrial Accident Board his claim for compensation within the six months prescribed by the statute, he had good cause for not doing so in that he believed his injuries were of a trivial nature and that they would not result in serious or permanent incapacity.
The case was submitted to a jury upon special issues, all of which were answered favorably to appellee, including the necessity for the payment of the compensation in a lump sum, and the court rendered judgment in his favor against appellant for $5,-425.22 to be paid in a lump sum.
The judgment was based upon the finding of the jury to the effect that appellee was totally and permanently incapacitated, 90% of which was attributable to the injuries he received in the first accident of March 5, 1936, and 10% being attributable
Appellant duly excepted to the judgment, gave notice of appeal, and presents the case in this court upon appropriate assignments of error and propositions of law in which it attacks the judgment and contends it should be reversed, or reformed as to the 90% of incapacity which was attributed to the injury of March 5, 1936, upon the grounds, first, that appellee failed to show good cause for the delay from March 5,1936, until February 4, 1938, in filing with the Industrial Accident Board his claim for compensation; secondly, error in the form of special issue No. 31; thirdly, that the court refused to submit the case to the jury upon the theory pleaded and proved by appellee in reference to the bases of his reasons for delay in filing his claim with the Industrial Accident Board; fourthly, error in the instruction given to the jury in connection with the definition of the term “partial incapacity”, and, fifthly, the refusal of the court to give a tendered precautionary instruction in reference to the manner in which the jury should consider the circumstances under which appellee was discharged or ceased his employment.
The jury found that appellee sustained an injury on March 5, 1936, which incapacitated him to'perform labor and that he sustained another injury on October 20, 1937. They found that as' a result of the two injuries he became totally incapacitated to work on the 12th of December, 1937. They found that until about the time he filed his claim for compensation he believed his injuries of March 5, 1936, would not disable him; that such belief prevented him from filing his claim for compensation until the time it was filed, and that a reasonably prudent person, situated as he was, would, for that reason, have delayed the filing of his claim for compensation for such length of time.
The testimony shows that during most, if not all, of the time from March 5, 1936, until October 20, 1937, when appellee received his second injury, he was not only .not incapacitated for work but apparently performed the duties of his employment without serious difficulty. He said at times his condition was not fully normal but that he did not believe his injuries were serious, principally because of the advice which had been given him by Dr. Brooks, the company’s physician, to the effect that his injuries of March 5, 1936, consisted merely of bruised muscles and tissues in the region of his back and hip, but his testimony indicates that after the second injury of October 20, 1937, his condition grew steadily worse until he ceased employment on December 12, 1937. A month later he consulted Dr. Maxfield at Waco and was advised by him that he had suffered fractures of bones in the region of his hip and back and that he was then, and had for some time been, unable to perform any sort of labor. He said that when he attempted to do so he had continuous pain; that his eyes were seriously affected; that he had pains in his back and shoulders; that he was nervous, and that he could not perform any kind of work. He said that his hip and back ached and at times he had excruciating pains in that region. He said that these conditions continued and that he was suffering from them at the time of the trial.
The first contention made by appellant is brought forward under its first, second and third propositions of law. Sec. 4a of Art. 8307 provides that notice of an injury shall be given to the association or employer within- thirty days after the injury and that unless a claim for compensation with respect thereto shall have been made within six months after the occurrence of same, no proceeding for compensation shall be maintained. The section further provides, however, that, for good cause, the Industrial Accident Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice and the filing of the claim with the Board. The statute does not give a definition of “good cause” and it is the rule, therefore, that the question of whether or not the circumstances which occasion a delay in filing the notice or claim for compensation constitute good cause is a question of fact to be determined by the court or jury trying the case unless the evidence is of such a conclusive nature that no reasonable grounds for good cause may be said to exist. Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Texas Employers Ins. Ass’n v. Little, Tex.Civ.App., 96 S.W.2d 677; Traders & General Ins. Co. v. Jaques, Tex.Civ.App., 131 S.W.2d 133. While it is true that, following his first injury, appellee resumed his employment and continued therein for something like eighteen months before receiving his second injury on October 20, 1937, his testimony indicates that at least at times during that period he was not in
From the testimony we do not believe it can be said that a condition existed in reference to appellee’s delay in filing his claim for compensation which would impel the conclusion that good cause did not exist for the delay. Rather, in our opinion, it reveals ample grounds for the conclusion and finding of the jury that appellee believed, until about the time he filed his claim with the Industrial Accident Board, that his injuries would not. disable him and that such belief prevented him from filing his claim for compensation. . We think, furthermore, that ample ground is shown for the finding of the jury that a reasonably prudent person, situated as ap-pellee was, would have delayed the filing of his claim. While these grounds may not be abundant, yet they were sufficient to form a basis for the jury’s verdict and, it being a question for the jury to decide, we are not authorized to disturb it.
Under its third proposition, in connection with this matter of “good cause”, appellant contends that, even if it should be admitted that appellee showed good cause for his delay from March 5, 1936, to December 12, 1937, at that time, according to his own testimony, he knew he was incapacitated and he did not show good cause for failure to file his claim for more than thirty days after December 12, 1937. The record' shows that he ceased work altogether on the last mentioned date and that it was his belief at that time that he was approaching total incapacity or perhaps it had already arrived. The fact that for eighteen months, according to his testimony, he did not know the cause of his physical decline, but believed he would ultimately recover and' that physicians had told him his injuries were not of a 'serious nature, was sufficient, we think, to warrant appellee in entertaining doubt even after December 12, 1937, that his incapacity was attributable to either, or a combination of both of his injuries. In fact he testified that he believed until he consulted Dr. Maxfield on January 12, 1938, that practically all, if not, in fact, all of his disability was attributable to his injury of October 20, 1937. We do not think his testimony requires the conclusion that he definitely believed or that any reasonably prudent person would have believed under the circumstances that he was becoming, or was, totally incapacitated at that time as a result of either of the injuries. His conclusion in that respect seems not to have been reached until he was examined by Dr. Maxfield. His claim for compensation was filed not later than February 4, 1938, which was less than thirty days after he had definite reason to believe his condition was the result of the injuries.
Appellant’s first. contention, which is presented by its first, second and third propositions of law, is, therefore, overruled.
Appellant’s second contention has reference to the form of special issue No. 31, in which the jury was requested to find whether or not appellee believed his injury of March 5, 1936, would not dis
The next contention made by appellant .is that in submitting the question of “good cause” the court did not follow the theory pleaded and proved by appellee. It contends that appellee’s theory was that his belief that his injuries would not result in his disability was based solely upon what Dr. Brooks had told him, and the court submitted the question in a general manner, that is, he asked the jury generally if appellee believed his injuries of March 5, 1936, would not disable him, instead of limiting the special issue to what appellee believed as a result of what Dr. Brooks had represented to him. It is true that appellee testified his belief in this respect was based largely upon what Dr. Brooks- had represented to him, but we think the testimony is sufficient to imply other bases for such belief. He testified that about December 12, 1937, his condition was very bad and that he was forced to cease his labors. He said that he was not a physician and did not know what was causing his disability. The evidence shows also that he consulted Dr. Maxfield at Waco concerning the same matter which indicates that he did not implicitly accept Dr. Brooks’ representations. This phase of appellee’s case was not based on any alleged fraud or other ground which would require the specific finding here contended for by appellant. In our opinion the special issue properly submitted the question and the record gives no reason for the belief that the jury's verdict in this respect was based upon any issue or question not raised by the pleadings and the evidence.
The fourth contention pertains to the definition given to the jury by the-court of “partial incapacity” in connection with special issues Nos. 35, 36 and 37. The definition was as follows: “Partial incapacity, as that term is used in this charge or any special issue given you herein, shall have the following meaning: It shall mean any degree of incapacity to work, less than total incapacity, as defined herein. You are further instructed that a person cannot be totally and partially incapacitated at the same time. If the plaintiff was totally incapacitated to any extent for any period of time, he could not be partially incapacitated for such period of time. Stating it the other way (meaning the same thing) if the plaintiff was partially incapacitated to any extent for any period of time, he could not be totally incapacitated for such period of time.” Appellant contends this amounts to a general charge which should not have been given in a case being tried upon special issues. Art. 2189, R.C.S., provides
The remaining contention made by appellant is that the court erred in refusing to give in his charge to the jury a special instruction requested by it to the effect that no inference unfavorable to appellant should be drawn from any supposed breach of duty on its part on account of the circumstances under which appellee ceased working for his employer. This undoubtedly would have been of the nature of a general charge if it had been given in the manner requested by appellant. The occasion ’for the requested charge arose during the examination of the witness Blaylock in which he testified that he thought the reason given by the Phillips Petroleum Company for discharging appellee was somewhat unreasonable and that it made the witness mad. He said he thought it was a little unfair. No objection was made to the statements of the witness at the time, the testimony was given, nor was any request made at that time that the court limit its consideration. The requested instruction was in no sense a definition or explanation of any legal term used in the court’s charge and we are unable to agree with appellant that the court erred in refusing to include it in his charge in a case being submitted upon special issues.
We have carefully examined all of the assignments of error and propositions of •law submitted by appellant in its brief and, in our opinion, none of them presents reversible error.
The judgment of the court below will be affirmed.
Rehearing
On Motion for Rehearing.
In its motion for rehearing appellant contends that we erred in the original opinion, in holding, in effect, that the jury was warranted under the testimony in finding that appellee was prevented from filing his claim for compensation for the injury of March 5, 1936, until it was filed, by the belief that his injury of that date would not disable him. It contends with-much earnestness that no excuse was shown for the delay from January 12th to February 4, 1938. We held that appellee filed his claim on February 4, 1938, which was twenty three days after he had been examined by Dr. Max-field at Waco and had been informed by Dr. Maxfield that the bones in the region of his hip and back had been fractured. The holding referred to the formal claim. The record shows that on January 13, 1938, the day after appellee had been so informed by Dr. Maxfield, his attorneys wrote a letter to the Industrial Accident Board in which they notified the Board that appellee sustained the injuries mentioned while engaged in the course of his employment; that he was given medical treatment and attention by his employer’s physician; that he had resumed the duties of his employment and continued therein until about the 15th of
From the above facts it will be seen that the day following appellee’s examination by Dr. Maxfield, the Board and the employer were notified by his attorneys of his claim for compensation additional to that which he had received immediately after the injury. When the Board informed the attorneys that in order to reopen the claim, it would be necessary to file medical evidence and a formal claim upon the usual blanks being used for that purpose, they had the latter executed and forwarded to the Board within seven or eight days. It appears, therefore, that the process of filing the claim for additional compensation for the injury of March 5, 1936, really extended over a period of some twenty two days. Correspondence with the Board was begun on the day following that upon which appellee was informed of the real facts as now claimed by him and seems to have been conducted with reasonable promptness. Considering these facts, we cannot agree with appellant that the record is devoid of any excuse for the delay in filing formal claim immediately following January 12, 1938, when appellee became informed for the first time that bones in the region of his hip and back had been fractured and that his injuries and disability were probably attributable thereto.
A careful consideration of the motion fails to convince us that the case was not properly disposed of in our original opinion, and the motion will be overruled.