Bailey v. Texas Indemnity Ins. Co.

• Decision Date: 13 March 1929
• Docket Number: (No. 1020-4984.)
• Parties: BAILEY et al. v. TEXAS INDEMNITY INS. CO.
• Court: Texas Supreme Court

14 S.W.2d 798

BAILEY et al. v. TEXAS INDEMNITY INS. CO.

(No. 1020-4984.)

Commission of Appeals of Texas, Section B.

March 13, 1929.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by Randolph Bailey and another against the Texas Indemnity Insurance Company. Judgment for plaintiffs was reversed by the Court of Civil Appeals (297 S. W. 1042), and plaintiffs bring error. Judgment of the Court of Civil Appeals reversed, and judgment of the District Court modified, and, as modified, affirmed.

Harry Dolan, of Georgetown, and Black & Graves, of Austin, for plaintiffs in error.

Woodward & Gay, of Austin, for defendant in error.

SHORT, P. J.

This suit is based upon the Workmen's Compensation Law of 1917 (Acts 1917, c. 103), and the issues for determination must be viewed from the standpoint of the provisions of that law. Randolph Bailey, one of the plaintiffs in error, was employed by Wattinger Bros. as a common laborer in the construction of the high school building at Georgetown, and sustained an injury while in the course of his employment on or about June 7, 1923. The Court of Civil Appeals, among other things, find as a fact that, in addition to the facts first above stated, Bailey has a meritorious case, is permanently disabled, that his employers had notice of his injury within 30 days thereto, and inferentially also find, as the trial court found in its findings of fact, that Wattinger Bros. were subscribers under the Workmen's Compensation Law of Texas, as it existed at the time the injury was received, and as such carried liability insurance with the defendant in error for the benefit of their employés; that the average weekly wage, which Bailey was receiving at the time he was injured, was $15; that he was entitled to receive, under the law, $9 per week.

The record shows, and the Court of Civil Appeals so find, that Bailey did not file his claim for compensation with the Industrial Accident Board until 2 years and 8 months after the injury occurred. It is an undisputed fact, as shown by the record, that Bailey had no actual knowledge that his employers carried insurance for his benefit. The case was tried without the intervention of the jury, and judgment was rendered in favor of the employé and his attorney for a lump sum, the sum being divided in accordance with the terms of the contract between Bailey and his attorney. The Court of Civil Appeals reversed the judgment of the trial court, and rendered the judgment in favor of the defendant in error. 297 S. W. 1042.

The application for the writ of error assigns many errors alleged to have been committed by the Court of Civil Appeals, but the view we have taken of the record renders unnecessary a discussion of all of these assignments. The judgment of the Court of Civil Appeals is primarily based upon the legal conclusion, that since the record shows, without dispute, that the claim of Bailey was filed more than two years after the expiration of the six months allowed by law, and more than a year after his incapacity ceased to exist, as a matter of law, the Industrial Accident Board and the trial court abused their discretion in awarding him compensation. The plaintiffs in error duly assign error upon this primary conclusion, reached by the Court of Civil Appeals, contending that, while the record shows Bailey had "constructive notice," as that phrase is defined by the law on this subject now in force, his employers carried compensation insurance with the defendant in error for his benefit, it was shown that Bailey did not have any actual notice of this fact until immediately before his claim for compensation was filed with the Industrial Accident Board.

With reference to the specific assignments raising this question, which we regard as the most material one presented by the record, we will discuss it, assuming, of course, the facts we have enumerated. In doing so, the only portion of the Workmen's Compensation Law of 1917 (Gen. Laws, 35 Leg., p. 269) applicable to the question are sections 3a, part 1, 4a, part 2, and 19 and 20, part 3, which, in the order named, are as follows:

"Section 3a [Part 1]. An employé of a subscriber shall be held to have waived his right of action at common law or under any statute of this state to recover damages for injuries sustained in the course of his employment if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed said right or if the contract of hire was made before the employer became a subscriber, if the employé shall not have given the said notice within five [5] days of notice of such subscription. An employé who has given notice to his employer that he claimed his right of action at common law or under any statute may thereafter waive such claim by notice in writing, which shall take effect five [5] days after its delivery to his employer or his agent: Provided further, that any employé of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his employment, as above provided in this section, shall, as well as his legal beneficiaries and representatives have his or their cause of action for such injuries as now exist by the common law and statutes of this state, which action shall be subject to all defenses under the common law and statutes of this State."

"Section 4a. Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this act shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty [30] days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six [6] months after the occurrence of same; or, in case of death of the employé or in the event of his physical or mental incapacity within six [6] months after the death or removal of such physical or mental incapacity: Provided that for good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the board."

"Section 19. Every subscriber shall, as soon as he secures a policy, give notice in writing or print, or in such manner or way as may be directed or approved by the Board, to all persons under contract of hire with him that he has provided for payment of compensation for injury with the association.

"Section 20. Every subscriber shall, after receiving a policy, give notice in writing or print, or in such manner or way as may be directed or approved by the board to all persons with whom he is about to enter into a contract of hire that he has provided for payment of compensation for injuries by the association. If any employer ceases to be a subscriber, he shall on or before the date on which his policy expires, give notice to that effect in writing or print or in such other manner or way as the Board may direct or approve to all persons under contract of hire with him. In case of the renewal of his policy no notice shall be required under this act. He shall file a copy of said notice with the board."

In order to receive the benefits contemplated by the provisions of this law, it is incumbent upon the employers of Bailey, as soon as they had secured the policy of insurance, to give him notice of that fact, if he was then one of their employés; and likewise it was their duty to notify Bailey that they had provided for payment of compensation for injury, in the manner provided by law, at the time when he was employed by them, if the policy had previously been procured. The record does not disclose which of these two situations arose; that is, whether the policy was secured before or after Bailey was employed. However, we do not consider material to have determined which of these existed. If Bailey's employers had already taken out insurance, under the law, at the time he was employed by them, then in that event it was the duty of his employers to notify him, at the time of the employment, of this fact. Upon the other hand, if they had not taken out such insurance when they employed him, then, under the law, it became their duty to notify him when they had done so.

Much is said in the briefs of the parties, as well as in the opinion of the Court of Civil Appeals, with reference to the constructive notice contemplated by the provisions of the law of 1923 (Laws 1923, c. 177, § D). Since this law is not applicable to the facts in this case, the injury having occurred before the present law went into effect, we do not deem it necessary to notice this discussion of the present law providing for constructive notice to employés, growing out of the fact that the employers had done the things which the present law now says would have the legal effect to furnish employés with constructive notice. It is sufficient to say that the law of 1917 does not embrace this language, or any language substantially conveying the same idea.

The only question of moment involved is whether Bailey's rights were barred by his failure to file his claim with the Industrial Accident Board within 6 months after he was injured, under the law and the facts of this case. Clearly, under a literal reading of section 4a, supra, without reference to other kindred provisions of the law, his rights were barred, since 2 years and 8 months elapsed after the injury...