Consolidated Underwriters v. Seale

• Decision Date: 17 January 1922
• Docket Number: (No. 759.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 237 S.W. 642
• Parties: CONSOLIDATED UNDERWRITERS v. SEALE et al.
• Court: Texas Court of Appeals

237 S.W. 642

CONSOLIDATED UNDERWRITERS v. SEALE et al.

(No. 759.)^*

Court of Civil Appeals of Texas. Beaumont.

January 17, 1922.

Rehearing Denied February 15, 1922.

Appeal from Tyler County Court; Grover C. Lowe, Judge.

Proceeding by L. J. Seale under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by the Lodwick Lumber Company, the employer, and the Consolidated Underwriters, insurance carrier. There was an award of compensation, and the insurance carrier appeals. Affirmed.

C. A. Lord, of Beaumont, for appellant.

J. E. Wheat, of Woodville, for appellees.

WALKER, J.

This is an appeal from a judgment of the county court of Tyler county, awarding compensation to L. J. Seale, appellee, under the provisions of the Texas Workmen's Compensation Act, as amended in 1917. Seale was injured on the 28th day of May, 1920, while in the due course of his employment with the Lodwick Lumber Company. This company was a subscriber under the Workmen's Compensation Act, carrying its indemnity insurance with appellant. The only question raised by this appeal is the sufficiency of the evidence to raise an issue of "good cause" in appellee's favor, excusing him for not giving notice of his injury to appellant or the Lodwick Lumber Company within 30 days after the happening thereof. This issue was submitted to the jury by the following question.

"Do you find from the evidence that a good cause is shown for the failure to give notice within 30 days?"

to which the jury answered: "Yes." On this issue appellee, Seale, testified as follows:

"I was scaling logs on May 28, 1920. Late in the afternoon, * * * while I was walking along by the side of a log which I was scaling, I struck my foot against a knot or projection of some kind. * * * This caused a right sharp pain at the time, but it subsided in a few minutes and I went on, finished my work, and thought no more about it for several days. It did not cause any soreness, and I paid no further attention to it; in fact, the entire matter passed out of my mind.

"But early in the morning of June 2d I woke up with a rather severe pain in that foot. * * * My foot was still hurting me when I got up. I looked at it, and it was a little red around that joint (indicating the large joint above mentioned). I put on my shoe and went to breakfast, and then walked to the train and went on to the woods with the rest of the men. * * * By the time I got to the woods I saw that I would not be able to work that day, as my foot was hurting so bad, and I waited until the first train went back to the mill, and I went in. I was still able to walk, but my foot was getting worse all the time.

"When I got back to the mill I went to see Dr. Selman, the Lodwick Lumber Company's regular doctor, and he examined my foot and asked me a good many questions about it, and particularly asked me if I had hurt my foot any way. I told him that I had not, and at that time I could not remember striking it on the knot a few days before. At that time I did not connect the condition of my foot with that injury at all.

"I stayed at the mill two days longer, and Dr. Selman treated my foot several times. Mr. Bird, the superintendent of the Lodwick Lumber Company, visited me several times and discussed my condition with me.

"On June 4th, I think it was, I discussed the matter with Dr. Selman and Mr. Bird, and we all decided that I would have to go to the hospital, as my foot was getting worse all the time and there wasn't any one at the hotel where I was staying to wait on me. * * * That day I was carried to the hospital at Beaumont, and called in Dr. Wier according to Dr. Selman's instructions, and gave him a letter Dr. Selman had written to him. Dr. Wier examined my foot, and treated it as long as I was in the hospital. I stayed there 32 days. * * * After Dr. Wier examined my foot he asked me if I had hurt my foot anywhere, and I told him that I could not remember. But during the night, the first night I was in Beaumont, I think, I felt a sharp pain strike my foot that reminded me of the incident I mentioned a while ago. It felt just like it did when I hit it against that knot. The first morning When Dr. Wier came I told him about it. * * *

"I did not give them (referring to the Lodwick Lumber Company) any formal notices but they knew as much about my trouble as I did."

On cross-examination the appellee, Seale, testified:

"I did tell Dr. Selman all the time that I had received no injury while in the employ of the Lodwick Lumber Company, and he asked me particularly about that. The only injury that I had ever received in the course of my employment and while working for this company was the slight blow which I have described in striking my foot against a knot or something on a log on the 28th of May. * * *

"No; I did not give any notice to the Lodwick Lumber Company that I had received an injury while in its employ, and I did not really think that I had received such injury, and I told the company's doctor, Dr. Selman, that I had received no injury. After it occurred to me, while I was in the hospital, on or about the 6th day of June, that I had struck this foot against the knot, I could have written to the Lodwick Lumber Company, and notified of this injury, but I did not do so. Yes; I could have gotten writing material, and I know how to write, and I could have thus given notice of the injury of which I now complain. Yes; there were telephones in the hospital, and I could have phoned the Lodwick Lumber Company, and thus given notice, but I did not do so. I suffered considerable pain for the first two weeks in the hospital, and after that I did not suffer so much, and after that I was about the building on crutches, and I was under no disabilities, mental or physical, that would have prevented me from writing or phoning to the company, and I did not do so. The reason I did not give such notice was that I did not know it was necessary, and I did not know that there was any particular time within which notice had to be given. That is why I did not give the notice.

"After remaining in the hospital 32 days I returned to Hicksbaugh with Mr. Bird, the company's manager, and on...