131 S.W.2d 242 | Tex. App. | 1939
This is a compensation case. Brookshire Brothers, operating a grocery store in the town of Jasper, was the employer, C. E. Johnson was the injured employee, and appellant, the Travelers Insurance Company, was the compensation insurance carrier. Under the findings of the jury, appellee sustained injuries on March 23, 1937, while in the course of his employment as a meatcutter and clerk, from which he is totally and permanently incapacitated. While certain matters relating to appellee's injuries and the extent thereof were contested issues in the trial court, the jury's findings of total and permanent incapacity were so well supported by the evidence that appellant does not urge any assignment against the sufficiency of the evidence on those issues.
Appellant's first nine propositions all relate to its contention that the trial court was without jurisdiction of this cause for the reason that appellee, who was plaintiff, did not give notice within 20 days of his intention to appeal from the judgment *243 of the Industrial Accident Board. Appellant preserved the point in the trial court by a plea in abatement, a motion to dismiss and a motion for an instructed verdict at the conclusion of the evidence, all of which motions and plea were overruled by the trial court. The facts relating to the issue may be summarized as follows:
The order of the Industrial Accident Board, from which plaintiff appealed, was entered July 19, 1937. The last day on which notice of intention to appeal could have been filed with the Board and lie within a 20 day period after entry of the order, was Sunday, August 8, 1937. Plaintiffs attorney wrote and mailed the notice early in the afternoon of Friday, August 6, 1937. The proof shows that in due course of the mail a letter so mailed would arrive in Austin either at 5:30 A. M. or at 1:30 P. M. on the following day, Saturday, depending on whether it was routed through Houston or via. the northern route. The Austin post office does not make local delivery of mail by carrier on Saturday afternoons and Sundays. The proof shows that at the time in question all mail arriving at the Austin post office addressed to the Industrial Accident Board, after 10:30 A. M. on Saturday up until 7 A. M. Monday, would be delivered by carrier to the Board at its office in the State Office Building on the 8 A. M. delivery Monday morninng. Plaintiff's notice of intention to appeal was marked or stamped by the Industrial Accident Board as filed Monday morning, August 9th, at 9 A. M. The proof shows that the Industrial Accident Board was accustomed to receive its mail by having it delivered at its office by the local mail carrier. It did not maintain a box for the receipt of mail at the post office. However, testimony of the postal employees showed that as mail for the Industrial Accident Board was received at the post office it was sorted and placed in a box or receptacle along with other State mail going to the same building awaiting delivery. Mr. Collins, who was secretary of the Industrial Accident Board at the time in question, testified that the office of the Industrial Accident Board was closed on Saturday afternoon and Sunday in conformity with its custom and there was no one present at the office to receive mail, except there was one employee on duty at the office on Saturday afternoon. He testified further:
"Q. Now if the Board or its office force had remained on duty Saturday afternoon, August 7, 1937, or on Sunday, August 8, 1937, would they have obtained and receipted all mail then in Austin addressed to the Board? A. It is my opinion that had the Board's mail been called for by someone with authority to receive the same on Saturday afternoon or Sunday, that same would have been delivered such person by the post office department."
He further testified:
"Q. On Saturday, August 7, 1937, the Industrial Accident Board closed its office at noon did they or did they not? A. The office was closed in conformity with its custom
"Q. Is late mail, or any part thereof, ever left over until the following day for opening? A. Sometimes, especially on Saturday.
"Q. Was first mail on Monday, August 9, 1937, Monday's mail, or was it Saturday's and Sunday's mail? A. I feel sure it was Saturday afternoon's and Sunday's mail."
He further testified:
"Q. Wasn't it often the case that mail and notices of appeal arriving late Saturday were placed in the Board's offices Saturday and then not stamped as received until Monday morning? A. That is correct."
He further stated that in such case the notice was stamped as of Saturday. He said also that it was not the custom of the Industrial Accident Board to call for its mail at the post office on Saturday afternoons; that in more than four years of service as secretary of the Board, he had never known that to be done. Mr. Collins' testimony on the point involved was corroborated by several other witnesses, and was in no wise disputed. The jury found, among other things, that the notice was received in Austin at 1:30 P. M. August 7th; that it was then placed where it was available to the Board, that it could have been received and marked received by the Board on August 7, 1937, that it could have been received by the Board on August 8, 1937, but that it actually came into possession of the Board on the day stamped, that is August 9, 1937. All findings have support.
With the exception of some assignments complaining of the form of the issues submitting temporary and partial incapacity, which we will notice in the course of the opinion, the contention that the notice of intention to appeal from the award of the *244 Industrial Accident Board was filed too late, presents the only question for decision.
We also overrule appellant's contention that the notice of intention to appeal was filed too late with the Industrial Accident Board. We think the notice was timely filed for two reasons:
(1) The notice was received at the post office in Austin on Saturday, the 19th day after entry of the order, at 1:30 P. M. and at that time was made available to the Industrial Accident Board. It should be considered as having been delivered to the Industrial Accident Board, and hence as filed as of that time. Tate v. Standard Accident Ins. Co., Tex. Civ. App.
(2) Even if it should be held that appellee's notice was not actually received by the Industrial Accident Board in time nevertheless, under the facts of this case, it should be held that the trial court had jurisdiction. It is our view that when a party desiring to appeal from an order of the Industrial Accident Board proceeds with due diligence to do so, by mailing his notice in the usual and customary manner in ample time for it to be received and filed by the Industrial Accident Board in due course of the mail, and when by reason of circumstances beyond his control and without fault on his part the notice is not actually filed by the Industrial Accident Board within the 20 days, he should not be charged with the delay in delivery so occasioned by the fault of others or by reason of matters lying beyond his control. Tate v. Standard Accident Ins. Co., supra. We think the following cases support this proposition in principle: Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63; Harris v. Texas Employers' Ins. Ass'n, Tex. Civ. App.
It is common knowledge that claimants of compensation insurance before the Industrial Accident Board live in various parts of the state, hundreds of miles from the office of the Board in Austin. It is the universal custom for notices of intention to appeal to be given by mailing the notices to the Board. Persons giving notice in that manner have a right to expect that a notice so mailed will be transmitted by the postal authorities and delivered to and received by the Industrial Accident Board in due course of the mails. It would be unreasonable and unjust to hold a party responsible for failure of postal authorities, through mistake or accident, to deliver the notice or for the *245 acts of the Industrial Accident Board in failing to facilitate prompt receipt of it. To hold here that appellee should be denied compensation for his injury simply because the Industrial Accident Board did not make provision for prompt delivery of his notice timely mailed, would be wholly out of keeping with the spirit of the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., which is a remedial statute which should be liberally construed with a view to accomplish its humane purpose and to promote justice. Federal Surety Co. v. Ragle, supra.
The judgment of the trial court is affirmed.