Green v. Texas Emp. Ins. Ass'n

• Court: Texas Civil Court of Appeals
• Writing for the Court: DAVIS
• Citation: Green v. Texas Emp. Ins. Ass'n, 339 S.W.2d 368 (Tex. Ct. App. 1960)
• Decision Date: 13 September 1960
• Docket Number: No. 7220,7220
• Parties: Jack GREEN, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.

Page 368

339 S.W.2d 368

Jack GREEN, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.

No. 7220.

Court of Civil Appeals of Texas, Texarkana.

Sept. 13, 1960.

Rehearing Denied Oct. 4, 1960.

Fulmer, Fairchild & Badders, Nacogdoches, for appellant.

Collins, Garrison, Renfrow & Zeleskey, Ralph M. Zeleskey, Lufkin, Norman, Rounsaville & Hassell, Jacksonville, for appellee.

DAVIS, Justice.

Appellant, Jack Green, sued appellee, Texas Employers' Insurance Association, for permanent total incapacity for an injury he received on August 11, 1956, while employed with S-K Fixture and Church Furniture Company. Appellant's claim was not filed within six months after the injury. A jury returned a verdict upon which it found that 'good cause' existed for the late filing of the claim, and answered all of the issues in a way that appellant should have been entitled to a judgment against the appellee for compensation for permanent total incapacity in a lump sum. Appellant moved for a judgment on the verdict. Appellee moved for a judgment notwithstanding the verdict. The trial court overruled appellant's motion, and granted appellee's motion. The trial court entered a judgment setting aside and disregarding the jury's findings in response to Special Issues that appellant had 'good cause' for the late filing of his claim for compensation with the Industrial Accident Board, and that the appellant take nothing of and from the appellee. The appellant has perfected his appeal and beings forward two points of error. He complains of the action of the trial court in granting the motion for the judgment notwithstanding the verdict of the jury, and that the trial court should have granted appellant's motion for judgment for compensation under the provisions of the Workmen's Compensation Laws of Texas for permanent total incapacity in a lump sum

We must decide whether or not there is any evidence of probative force to support the jury's findings that were set aside and disregarded by the trial court. Such a judgment by the trial court, N.O.V., can be sustained only in the event there is no evidence of probative force on which the jury could have made the findings that were set aside and disregarded. Goodloe v. Williams, Tex.Civ.App., 302 S.W.2d 235, error refused; Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, and De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95.

To determine whether there is any evidence of probative force, the evidence will be viewed in the light most favorable to the party against whom the judgment N.O.V. is rendered, disregarding contradictory or adverse evidence, and indulging every reasonable inference in such party's favor. Texas & R. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989.

In the case of Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372, Associate Justice Folley had this to say on the question of 'Good cause':

'The term 'good cause' for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. Consequently, whether he has used the degree of diligence required is ordinarily a question of fact to be determined by the jury or the trier of facts. It may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion. Martin v. Travelers Ins. Co., Tex.Civ.App., 196 S.W.2d 544; Great American Indemnity Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883; LaCour v. Continental Casualty Co., Tex.Civ.App., 163 S.W.2d 676; Texas Indemnity Ins. Co. v. Cook, Tex.Civ.App., 87 S.W.2d 830, writ refused.

'The law is well settled that a bona fide belief of a claimant that his injuries are not serious but trivial is sufficient to constitute good cause for delay in filing a claim. It also has been held a number of times that the advice of a phyician, upon whom a claimant relies, that injuries are not of a serious nature, but are temporary or trivial, is sufficient to justify a claimant's delay until he learns, or by the use of reasonable diligence should have learned, that his injuries are serious. Texas Employers' Ins. Ass'n v. Roberts, 135 Tex. 123, 139 S.W.2d 80; Texas Employers' Ins. Ass'n v. Frankum, 145 Tex. 658, 201 S.W.2d 800; Texas Employers' Ins. Ass'n v. Clark, Tex.Civ.App., 23 S.W.2d 405; Consolidated Underwriters v. Pruitt, Tex.Civ.App., 180 S.W.2d 461; Dean v. Safety Casualty Co., Tex.Civ.App., 190 S.W.2d 750; Zurich General Accident & Liability Ins. Co. v. Lee, Tex.Civ.App., 135 S.W.2d 505; Traders & General Ins. Co. v. Jacques, Tex.Civ.App., 131 S.W.2d 133; Texas Employers' Ins. Ass'n v. Fowler, Tex.Civ.App., 140 S.W.2d 545; Federal Underwriters Exchange v. McDaniel, Tex.Civ.App., 140 S.W.2d 979; Gulf Casualty Co. v. Taylor, Tex.Civ.App., 67 S.W.2d 415; Hartford Accident & Indemnity Co. v. Jackson, Tex.Civ.App., 201 S.W.2d 265.'

The findings of the jury on the question of 'good cause' that were set aside and disregarded by the trial court in rendering a judgment are as follows:

'Special Issue No. 18

'Do you find from a preponderance of the evidence that Jack Green was advised by Dave Sanders, President of S-K Fixture and Church Furniture Company, not later than August 20th 1956, that he would file Jack Green's claim for compensation with the Industrial Accident Board?

'Answer 'Yes' or 'No'.

'Answer: 'Yes'.

'Special Issue No. 19

'Do you find from a preponderance of the evidence that Plaintiff relied upon such representation, if any, to such an extent that plaintiff refrained from filing claim for compensation sooner than same was actually filed?

'Answer 'Yes' or 'No'.

'Answer: 'Yes'.

'Special Issue No. 20

'Do you find from a preponderance of the evidence that plaintiff relying on said representation (if you have found that he did) constitutes 'good cause', as that term is defined herein, for not filing his claim for compensation sooner than same was actually filed?

'Answer 'Yes' or 'No'.

'Answer: 'Yes'.

'By the term 'Good Cause' as used in this charge is meant whether or not the claimant has used in the prosecution of his claim that degree of diligence which a man of ordinary prudence, situated as plaintiff was, would have used under the same or similar circumstances.

'Special Issue No. 21

'Do you find from a preponderance of the evidence that Jack Green was assured by Dave Sanders, President of S-K Fixture & Church Furniture Company, about two or three months following August 11, 1956, that his claim for compensation had been filed with the Industrial Accident Board, at Austin?

'Answer 'Yes' or 'No'.

'Answer: 'Yes'.

'Special Issue No. 22

'Do you find from a preponderance of the evidence that plaintiff relied upon such representation, if any, to such an extent that plaintiff refrained from filing claim for compensation sooner than same was actually filed?

'Answer 'Yes' or 'No'.

'Answer: 'Yes'.

'Special Issue No. 23

'Do you find from a preponderance of the evidence that plaintiff relying on said representations (if you have found that he did) constitutes 'good cause' as that term is defined herein, for not filling his claim for compensation sooner than same was actually filed?

'Answer 'Yes' or 'No'.

'Answer: 'Yes'.

'By the term 'Good Cause' as used in this charge is meant whether or not the claimant has used in the prosecution of his claim that degree of diligence which a man of ordinary prudence, situated as plaintiff was, would have used under the same or similar circumstances.' (Emphasis added.)

By the very definition of 'good cause' the inquiry is, in effect, whether the claimant was, or was not, negligent in failing to file his claim with the Industrial Accident Board sooner that he did. If there is evidence of the exercise by the claimant of some care and prudence in the prosecution of his claim, the sufficiency of the care exercised presents a jury question. Texas Employers' Ins. Ass'n v. Crain, Tex.Civ.App., 259 S.W.2d 905, writ refused, n. r. e.; and, Texas & Pac. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.

In the evidence it was shown that the appellant received an electrical shock while wiring in an attic fan with a minimum of 220 volts of electricity. The shock caused blisters on his hands, one ear, and on his right leg. It also caused a severe jerk to his neck, and left him with a numbness that pretty well covers the entire left side of his body, arm and leg. It also affected his privates. This injury, according to the doctor who testified, was sufficient to have caused a reptured cervical disc and a ruptured dise in the lower part of his back. The doctor testified that in his opinion the man was suffering from such injuries, and in his opinion, his injuries were total and permanent.

On the day following the accident the appellant went to a hospital where he was visited by David Sanders, who, according to the evidence, had always been a close personal friend of the appellant. While he was in the hospital, or shortly thereafter, he was advised by Mr. Sanders that he would have to sign some papers to file with the Industrial Accident Board. The appellant testified that he went to the office immediately and the papers were filled out by a Mr. Morris; that he signed them and was told by Mr. Morris that one of them would be mailed to the Industrial Accident Board, one to the Insurance Company, and one would be kept by the Company.

Appellant soon went back to doing light work at the plant, and he continued to draw $100 per week every week, whether or not he worked or was in the hospital.

The first doctor he went to see was Dr. Martin in Jacksonville. About...