American Mut. Liability Ins. Co. v. Wedgeworth, 10964.

• Decision Date: 04 April 1940
• Docket Number: No. 10964.,10964.
• Parties: AMERICAN MUT. LIABILITY INS. CO. v. WEDGEWORTH.
• Court: Texas Court of Appeals

140 S.W.2d 213

AMERICAN MUT. LIABILITY INS. CO. v. WEDGEWORTH.

No. 10964.

Court of Civil Appeals of Texas. Galveston.

April 4, 1940.

Rehearing Denied May 9, 1940.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit under the Workmen's Compensation Act by J. L. Wedgeworth to set aside an award of the Industrial Accident Board in favor of the American Mutual Liability Insurance Company. From a judgment granting relief, the defendant appeals.

Affirmed.

Baker, Botts, Andrews & Wharton and Albert P. Jones, all of Houston, for appellant.

Collins, Pate, Hatchell & Garrison and Pitser H. Garrison, all of Lufkin, for appellee.

GRAVES, Justice.

This general statement adopted by the appellee as being substantially correct, is taken from the appellant's brief:

"This is a suit for compensation under the Workmen's Compensation Act of Texas. It arose out of an injury alleged to have been sustained by appellee on March 10, 1937, while he was employed by National Supply Company of Delaware in Houston, Harris County, Texas. Claim for compensation was filed with the Industrial Accident Board on January 31, 1938. The Board rendered an award on April 22, 1938, denying the claim on the ground that appellee had failed to show good cause for the delay in filing it. An appeal from the award was taken by appellee to the district court of Harris County on May 23, 1938.

"In his trial pleading appellee alleged that he was injured on March 10, 1937, while in the course of his employment by National Supply Company of Delaware; that his injury had totally disabled him from work since the date of the accident and that his disability was permanent; that he was entitled to recover compensation from appellant at the rate of $20 per week for 401 weeks; that in presenting his claim to the Industrial Accident Board and in perfecting his appeal from the adverse award, he had complied with all of the jurisdictional requirements prescribed by the Compensation Law, except with respect to the filing of claim for compensation; and that he had good cause for failing to file his claim with the Industrial Accident Board up until the time it was actually filed. At the trial appellee sought to excuse his failure to file his claim for compensation prior to January 31, 1938, on the ground that until a few days before that date, he did not realize the seriousness of his condition and believed until on or about January 28, 1938, that his injury was trivial and would result in no physical incapacity.

"Appellant's pleading contained a general demurrer, a general denial of the allegations contained in the plaintiff's petition, and a verified denial of the claim that plaintiff had a good cause for failing to file his claim for compensation before January 31, 1938.

"The cause came on for trial on the 20th day of March, 1939, in the 80th Judicial District Court of Harris County. At the conclusion of the introduction of testimony, appellant moved for a directed verdict in its favor. The motion was denied and an exception duly noted. The case was submitted to the jury on special issues. In brief, the verdict contained the following findings:

"(1) That appellee sustained an injury to his left leg on March 10, 1937, while in the course of his employment by National Supply Company of Delaware.

"(2) That the injury had naturally affected or involved other portions of appellee's body.

"(3) That the injury produced total incapacity, which began on January 28, 1938, and that such total incapacity is permanent.

"(4) That the total incapacity was not temporary and that appellee had not and would not sustain any partial incapacity.

"(5) That there was another employee of the same class as J. L. Wedgeworth who worked substantially the whole of the year immediately preceding March 10, 1937, in the same or similar employment as that in which Wedgeworth was engaged when said injury was sustained by him, in the same or a neighboring place to that where he sustained such injury, and that the average daily wage of such an employee was $9.20 per day.

"(6) That manifest hardship and injustice would result to appellee if compensation were not paid in a lump sum.

"(7) That until on or about January 28, 1938, appellee believed that the injury sustained by him on March 10, 1937, was trivial and would result in no physical incapacity, that a reasonable prudent person similarly situated would have entertained such a belief, that his belief was the cause of the delay in filing the claim for compensation until January 31, 1938, that appellee relied on this belief, and that a reasonably prudent person similarly situated would have delayed the filing of claim for compensation until January 31, 1938.

"(8) That the incapacity of appellee was not solely confined to his left leg below the knee.

"(9) That the incapacity of appellee was not caused solely by disease or other bodily conditions having no connection with the injury sustained by him on March 10, 1937.

"After the verdict was received and ordered filed, appellant moved for judgment in its favor notwithstanding the verdict. Counsel for appellee were duly notified in advance of the intention of counsel for appellant to file said motion and executed a proper waiver of further service. This motion was denied, and an exception duly reserved. Appellee moved for judgment in his favor on the verdict. In response to this motion, judgment was entered on April 3, 1939, in favor of appellee for the total sum of $6,286.26, representing lump sum payment of weekly benefits of $20 per week for the period of 355 weeks from and after January 28, 1938. Appellant duly excepted to the entry of this judgment."

Appellant inveighs here against that determination below through thirteen propositions of law; in different forms the first six of them declare in ultimate purport that the evidence showed, as a matter of law, that the appellee did not have a good cause for failing to file his claim for compensation within the six months required by R.S. Article 8307, section 4a, and could not reasonably have believed that he did have one, as the court and jury found the facts to be on those two material features of the cause; they do not raise the different question of whether such findings were so against the overwhelming preponderance of the evidence as to be clearly wrong. The next three assert it to have been—for differently stated reasons—reversible error for the trial court to have submitted, over appellant's objections, special issues Nos. 34, 34a, 35, and 36, or any others of like import, inquiring whether the appellee reasonably believed until on or about January 28, 1938, "that his injury was trivial and would result in no physical incapacity, whether such belief constituted good cause for failing to file a claim for compensation until January 31, 1938, and whether a reasonably prudent person similarly situated would have relied on such belief, because the testimony of appellee, as well as that of his own witnesses, showed that he, pursuant to orders of his personal physician, laid off from work the latter part of May, 1937, stayed at home for about sixty days resting his leg and taking medicine, went back to work the latter part of July, and, after two or three weeks at work, quit a second time, and then returned home where he was unable to work and did not work, because such circumstances showed a disability which began long before January 28, 1938, and which precluded belief of triviality of injury as a good cause for delaying the filing of claim for compensation until January 31, 1938."

The last three of such propositions present that there was prejudicial error in the court's refusal to submit appellant's specially-requested issues Nos. 2 and 3, or at least similar ones, inquiring in effect whether the appellee knew he was unable to work within a month after he returned to his home from Houston in August of 1937, and whether he could have ascertained, by the exercise of ordinary care, the fact that he was disabled to perform some of the duties of his regular employment prior to January 28 of 1938.

After careful consideration of the record, it is determined that none of these contentions should be sustained; as concerns the first group of them so asserting that as a matter of law the verdict was without any support in the evidence, there appears to this court to have been a sort of mixing of metaphors upon appellant's part; that is, in so, first, moving on the trial for a directed verdict at the conclusion of the testimony, and, second, for judgment in its favor notwithstanding the verdict the jury had returned, it apparently confuses testimony relating to the appellee's sufferings of pain and physical inconvenience during the whole of the period from the date of his injury to January 28 of 1938, with what there was dealing with any loss of or reduction in his earning-capacity.

Indeed, under the testimony upon these two features—that is, as to whether he had a good cause and reasonable belief that he had it for delaying the filing of his claim as he did—of the appellee himself, as corroborated by that of Dr. Denman, it is not easy to see how such claim can be well founded; in order to support the position that the evidence showed the verdict unsupported as a matter of law, the rule on appeal is that only the testimony favorable to the verdict, discarding all that was adverse, should be considered. Haskins v. Panhandle, & S. F. R. Co., Tex. Civ.App., 89 S.W.2d 831; Missouri-K.-T. Ry. Co. v. Cunningham, 118 Tex. 607, 23 S.W.2d 343, 352; Jones v. Jones, Tex.Civ. App., 41 S.W.2d 496; Williams & Chastain v. Laird, Tex.Civ.App., 32 S.W.2d 502; Frazier v. Hanlon Gasoline Co.,...