American Motorists Ins. Co. v. Boortz, 13971.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: HUTCHESON, , and RUSSELL and STRUM, Circuit
• Citation: American Motorists Ins. Co. v. Boortz, 197 F.2d 900 (5th Cir. 1952)
• Decision Date: 27 June 1952
• Docket Number: No. 13971.,13971.
• Parties: AMERICAN MOTORISTS INS. CO. v. BOORTZ.

197 F.2d 900 (1952)

AMERICAN MOTORISTS INS. CO. v. BOORTZ.

No. 13971.

United States Court of Appeals Fifth Circuit.

June 27, 1952.

G. W. Parker, Jr., Ft. Worth, Tex., for appellant.

W. P. McLean, Jr., Ft. Worth, Tex., for appellee.

Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.

HUTCHESON, Chief Judge.

In his suit brought under the Workmen's Compensation Act of Texas, Vernon's Ann. Civ.St. art. 8306 et seq., to set aside an award of the Industrial Accident Board, plaintiff alleged that, though the accident occurred on Nov. 23, 1949, and the claim for compensation was not filed until Jan. 25, 1951, he had good cause¹ up until he filed his claim for not filing it within the time provided by the Act.

The good cause alleged was that he was not informed by the defendant's doctors of the full extent of his injury and was misled by them up to the very time he filed his claim into believing that his injuries were not of a serious nature.

The defendant denied under oath that this was so, and, the cause proceeding to trial to a jury and the evidence all in, moved for an instructed verdict on the ground that the undisputed evidence showed as matter of law that the appellee did not have good cause up to January 25, 1951, for failing to file his claim.

This motion denied and one of defendant's requested charges on the good cause issue also denied, the cause was submitted to the jury and it returned a verdict finding: that appellee "had a reasonable excuse for his delay in filing his claim"; and that he was totally and permanently disabled, beginning December 20, 1950.

Defendant's motion, for a judgment notwithstanding the verdict, denied, judgment was entered on the verdict and the defendant appealed.

Here appellant presents, as its main ground for reversal, that the evidence established as matter of law that appellant did not have statutory good cause for not filing his claim with the Accident Board prior to January 25, 1951, and, as its subordinate one, the refusal of its requested charge number two on the "Good Cause" issue.

Not at all disagreeing with appellee's contention as to the controlling principles, indeed planting itself on the principles announced in the authoritative case of Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370,² appellant insists that under the undisputed facts in this case there was failure as matter of law to show good cause. We agree.

It will serve no useful purpose for us to marshall and cite here the almost numberless cases in which the courts, state and federal, have canvassed the question whether the evidence on the issue of good cause did or did not present a fact issue for the jury, because it is settled law that each case must be determined on its own facts. It will suffice to set out in the margin first the late cases on which appellant³ seems to rely and next those in which appellee⁴ places his greatest reliance.

All of these cases lay down the same principles of law and rules of decision. Their differences exist only in the facts to which the principles are applied. This is nowhere better or more correctly stated than in our case, Pacific Employers' Insurance Co. v. Oberlechner, 5 Cir., 161 F.2d 180, from which appellee quotes in his brief practically the whole decision:

"It has been thoroughly settled by decisions of the courts of Texas that the test as to whether or not an employee had shown good cause for his delay in filing a claim is whether or not he had prosecuted his claim for compensation with that degree of diligence that a reasonably prudent person would have exercised under the same or similar circumstances.

"Each case must be determined by its own facts and circumstances and since this is a case governed by State statutes and State decisions, it does not seem highly important for us to say more than that we think that the evidence in this case presented a question for the jury under the Texas decisions, and that the lower Court did not err in so submitting it."

Turning then to the undisputed facts, most of which are from the testimony of plaintiff himself, we find a history of pain and inability to get well, of visits innumerable to, and consultations innumerable with, doctors, with operations and fusion treatment advised, of the wearing of a plaster cast, of prolonged abstentions from work, being pulled off his route and just "sitting down at the plant", begun in September, 1950, when he first went to see Dr. Lipscomb,⁵ who treated him until December 19th.

Finally, though, as plaintiff testified that he had, he found out on December 20, 1950, that his back was really injured,⁶ he did not file his claim until January 25, more than a month later. Under these facts, it cannot with reason be claimed that there was an issue of fact on whether plaintiff had good cause.

We think that what was said by the Texas Court in the Copinjon case, supra 242 S.W.2d 220, applies with equal force here:

"It has been held that a good faith belief on the part of a claimant that his injuries were not serious may constitute `good cause\' for failing to present a claim within the statutory time. Such belief, however, must meet the primary test of ordinary prudence. Hawkins v. Safety Cas. Co., 146 Tex. 381, 207 S.W.2d 370.

"Taking as true his statements of pain and suffering undergone by him following the accident of August 5, 1946, appellant\'s action in delaying the filing of his claim until December 27, 1948, does not meet the standard of ordinary prudence. This conclusively appears as a matter of law. To hold otherwise would be to effectively nullify the statutory provision designed to secure the prompt filing of claims and prevent frauds ofttimes incident to the filing of stale demands. We cannot indulge the over-credulous at the risk of admitting the fraudulent, but must follow the public policy of the state as declared by legislative enactment. The court correctly instructed the jury to find for the appellee."

The district judge erred in denying defendant's motion for...