Great American Indemnity Co. v. Beaupre

• Decision Date: 09 November 1945
• Docket Number: No. 13634.,13634.
• Parties: GREAT AMERICAN INDEMNITY CO. v. BEAUPRE et al.
• Court: Texas Court of Appeals

Page 883

191 S.W.2d 883

GREAT AMERICAN INDEMNITY CO. v. BEAUPRE et al.

No. 13634.

Court of Civil Appeals of Texas. Dallas.

November 9, 1945.

Dissenting Opinion December 20, 1945.

Rehearing Denied January 11, 1946.

Appeal from District Court, Dallas County; Jno. A. Rawlins, Judge.

Suit under the Workmen's Compensation Act by the Great American Indemnity Company, insurance carrier, to set aside an award of the Industrial Accident Board in favor of A. J. Beaupre, employee, wherein the employee filed a cross-action. From an adverse judgment, the insurance carrier appeals.

Affirmed.

R. T. Bailey, of Dallas, for appellant.

Carter & Gallagher and Ben T. Warder, Jr., all of Dallas, for appellees.

LOONEY, Justice.

This is a workman's compensation case. A. J. Beaupre, referred to herein as plaintiff, was the employe; Lockheed Aircraft Corporation, manufacturer of airplanes, the employer; and Great American Indemnity Company, the insurance carrier. Plaintiff sought compensation for loss of the use of his left leg, due to an injury to his knee, together with certain medical expenses incurred within four weeks following said injury, also the expenses of a surgical operation performed on his knee, at his insistence, after the suit to set aside the award of the Industrial Accident Board was filed. On findings made by the jury, in answer to appropriate issues submitted, judgment was entered in favor of plaintiff for compensation for 200 weeks at $20 per week, for two items of medical expenses—one aggregating $59 for expenses incurred within four weeks after date of injury and the other $293.50 for expenses incurred for the surgical operation.

The suit was begun by an appeal from the award of the Industrial Accident Board filed in the court below by defendant herein; plaintiff answered, and in a cross action alleged at length the essential facts constituting his claim for compensation and, as his claim was not filed with the Accident Board until after the expiration of six months from date of injury, plaintiff made rather lengthy allegations showing good cause for failure to file his claim within the six months period. Aside from certain special exceptions urged, defendant answered by a general denial, and specifically, that plaintiff's alleged disability was not attributable to any injury sustained in course of his employment; but, if mistaken in this, that such disability was confined to his left leg; was partial and temporary in nature, and if it had not at that time ceased to exist, would within a short period; that from February 8, 1943, date of injury, until on or about April 27, 1944, plaintiff remained in his usual employment and received larger wages during such period; that if he had suffered any disability, it was of a minor nature and did not affect plaintiff's ability to retain employment. Defendant further alleged that plaintiff's disability, if any, was the result of an occupational disease, as distinguished from an accident sustained in course of employment.

In answer to special issues the jury found that on February 8, 1943, while working for the employer, plaintiff sustained an accidental injury which, beginning on date of injury, caused plaintiff to sustain total and permanent incapacity to his leg; that same did not result from disease; and on the issue of good cause for failure of plaintiff to file his claim within the six months period from date of injury, the jury found that on or about May 11, 1943 (within the six months period), W. W. Wilson (defendant's adjuster), represented to plaintiff that he, Wilson, would investigate the claim, report the result of such investigation to his company (defendant herein), and advise plaintiff whether or not defendant would allow same, and that plaintiff should leave everything to him (Wilson); that plaintiff believed and relied upon the representations of Wilson and was induced thereby to delay filing his claim for compensation with the Accident Board until it was in fact filed (on or about October 8, 1943). The jury also found that up to the time plaintiff filed his claim with the Board, he didn't believe the injuries sustained by him were serious in nature; and failure to file the claim until it was filed was due to his belief that such injuries were not of a serious nature. The jury further found that on September 23, 1943 (which it seems was the date Wilson informed plaintiff that defendant rejected the claim), Wilson represented to plaintiff that he (Wilson) would endeavor to get his company (defendant herein) to provide plaintiff with a surgical operation and reimburse him for all medical expenses incurred — which the jury found Wilson failed to do. The jury also found that plaintiff believed and relied upon the representations of Wilson in this respect, and was induced thereby to delay filing his claim for compensation with the Board until it was filed; also found that by reason of plaintiff's belief in and reliance upon the several representations made him by Wilson, and plaintiff's belief that his injuries were not of a serious nature, that, in failing to file his claim for compensation with the Accident Board until it was filed, plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances.

The findings of the jury, in our opinion, were authorized by both pleadings and evidence, and are adopted as our conclusions on the respective fact issues.

In its Sixth point of error the defendant contends that the evidence was insufficient to show that plaintiff sustained the injury complained of in the course of his employment.

As heretofore stated, the jury found that on February 8, 1943, while working for Lockheed Aircraft Corporation, plaintiff sustained an accidental injury to his left leg. This finding, in our opinion, was authorized by undisputed evidence; in fact, defendant failed to brief the point and referred to it in such manner as to indicate the point was not urged with any thought that it would provoke serious consideration. In its brief the defendant states: "We could admit there is evidence to support the jury's finding to the effect that Beaupre did sustain an injury in the course of his employment as claimed by him, but because we have no faith in such claim, we do not do so." We therefore overrule defendant's Sixth point.

Defendant's Second, Fourth, Fifth and Seventh points of error combined, present for our consideration but one question; that is, that plaintiff failed to show good cause for failure to file his claim for compensation with the Accident Board within six months after the occurrence of same.

The evidence bearing upon the above issues is lengthy and it would serve no useful purpose to make quotations therefrom; however, we examined same carefully and reached the conclusion that the findings of the jury on the several questions clustering around the main issues as to whether plaintiff showed good cause, were authorized by the evidence; so we adopt these findings as our conclusions of fact on the question.

It seems that immediately after receiving his injury, plaintiff went to the first aid station and consulted Dr. Carroll, the employer's physician, who seemed to think the injury was trivial and instructed plaintiff to return to his work; again on February 12, a few days after the injury, plaintiff being in Dr. Carroll's office, the lady clerk, Mrs. Williams, filled out a blank to be filed by plaintiff with the Accident Board as his claim for compensation for the injury. On inspection, Dr. Carroll, according to testimony of plaintiff, tore up the report prepared by Mrs. Williams, stating he did not consider that plaintiff's injury constituted an accident claim. And on and on, throughout the year, even up to October 1943, according to testimony of plaintiff, Dr. Carroll discounted the seriousness of plaintiff's injury and continuously advised him that the swelling and pain would depart and that no permanent results would be suffered. About May 1943, plaintiff encountered Mr. Wilson, defendant's adjuster, who assured plaintiff that he (Wilson) would investigate the case, report to the company, and inform plaintiff of the result; and this hope was held out by Wilson to plaintiff until in September 1943, after the expiration of the six months period, when, for the first time, Wilson informed plaintiff that the defendant would not pay the claim. However, at that time and in this connection, assured plaintiff that he (Wilson) would endeavor to secure an agreement from the defendant to give plaintiff a surgical operation and compensation for all medical expenses incurred. Plaintiff had no direct and positive knowledge that defendant would not give him a surgical operation, pay the expenses thereof and compensation for the injury, until October 5, 1943, a few days before his claim was filed. This information was contained in a letter from defendant, presumably to Dr. Carroll, and was read in Dr. Carroll's office. Upon the whole, we think the evidence fully sustained plaintiff's contention that reasonable cause existed for his failure to file the claim earlier than it was filed.

Cases bearing upon the question of good cause are numerous, and only a few of the most pertinent will be cited. The most analogous, we think, are Federal Underwriters Exchange v. McDaniel by the Beaumont Court of Tex.Civ.App., 140 S. W.2d 979 (app. dis. cor. judg.); Consolidated Underwriters v. Pruitt by the Amarillo Court of Civ.App., 180 S.W.2d 461 (app. dis.); Gulf Casualty Co. v. Taylor, Beaumont Court of Civ.App., 67 S.W.2d 415 (app. dis.). In Lacour v. Continental Casualty Co., Tex.Civ.App., 163 S.W.2d 676 (app. dis.), the Galveston Court said that the test for "good cause" of delay in filing a claim before the Board is that of ordinary prudence; that is, whether the injured employe has prosecuted his claim for compensation with that degree of diligence that an ordinarily prudent person would have...