Gulf Casualty Co. v. Taylor

• Court: Texas Court of Appeals
• Writing for the Court: Walker
• Citation: Gulf Casualty Co. v. Taylor, 67 S.W.2d 415 (Tex. App. 1933)
• Decision Date: 20 December 1933
• Docket Number: No. 2495.,2495.
• Parties: GULF CASUALTY CO. v. TAYLOR.

67 S.W.2d 415

GULF CASUALTY CO. v. TAYLOR.

No. 2495.

Court of Civil Appeals of Texas. Beaumont.

December 20, 1933.

Appellee's Motion for Rehearing Denied January 3, 1934.

Appellant's Motion for Rehearing Denied January 17, 1934.

Appeal from District Court, Liberty County; Thos. B. Coe, Judge.

Suit by John R. Taylor against the Gulf Casualty Company to set aside the Industrial Accident Board's award of compensation for injuries received while in the employ of the Gulf Pipeline Company of Texas. Judgment for plaintiff, and defendant appeals.

Reversed, and remanded for a new trial.

Llewellyn & Dougherty, of Liberty, and Walter C. Clemons, of Houston, for appellant.

B. C. Johnson and Earle Adams, Jr., both of Houston, for appellee.

WALKER, Chief Justice.

This is a compensation case. Appellee, John R. Taylor, plaintiff below, was the employee, Gulf Pipeline Company of Texas, the employer, and appellant, Gulf Casualty Company, defendant below, the compensation insurance carrier. On the 27th day of May, 1931, appellee, in the regular course of his employment, while lifting a heavy timber, was injured by straining of the nerves, tendons, ligaments, muscles, and bones of his back. He was given immediate medical attention, but remained regularly on the pay rolls of his employer and received his regular monthly salary at the rate of $185 per month, the same amount paid him before his injury, until November 30, 1931, when, with many other employees, he was discharged. Appellee's injury was reported to his employer on May 27, 1931, and on June 5, 1931, his employer reported the injury to the Industrial Accident Board. On February 5, 1932, appellee executed his "notice of injury" and "claim for compensation" based upon the accident of May 27, 1931, which he filed with the Industrial Accident Board on February 9, 1932. As ground for "good cause" for not filing his claim with the Industrial Accident Board within six months after the occurrence of the injury, he pleaded that the doctors who treated him from time to time advised him that his injury was temporary; that he would soon recover; that it was not permanent; that by taking proper treatment he would get well, etc.; that he believed these representations and relied thereon until he was informed and led to believe that his injuries were permanent, whereupon he filed his claim. We quote as follows from the plea of good cause: "Plaintiff further alleges that good cause exists for his failure to file claim before the Board, in that, he was assured by the doctors, and believed and relied upon their assurances, that his injuries were only temporary, that he would soon recover and be able to do and perform the labors for which he was fitted until, on or about February 5, 1932, at which time he realized that his injuries were permanent."

The answer of appellant was by general and special demurrers, general denial, etc. The jury found the following facts: (a) On May 27, 1931, appellee sustained an injury while in the course of his employment with the Gulf Pipeline Company; (b) appellee suffered total permanent incapacity which began on December 1, 1931, as the result of that injury; (c) such total incapacity was not brought about "solely and proximately by causes other than injuries received by John R. Taylor on May 27, 1931"; (d) facts justifying a lump sum settlement. Question No. 2 submitted to the jury was as follows, answered as indicated. "Did plaintiff's belief of and reliance upon the doctors' assurances that his injury, if any, of May 27, 1931, would be temporary, and that he would soon recover, and that he would be able to do and perform labor, as alleged, cause him to delay filing his claim with the Industrial Accident Board until February 9, 1932?" To which the jury answered "Yes."

On the verdict, judgment was entered in favor of appellee for compensation for 401 weeks at $20 per week, payable in a lump sum.

By the first and second propositions appellant asserts that appellee failed to allege and prove facts sufficient to raise the issue of "good cause." This contention is overruled. Under the evidence, from the time appellee was injured up until just before he filed his claim with the Industrial Accident Board, he was advised by his attending physicians that his injury was temporary and not permanent, that he would recover under the treatment that was given him, and, though he was in constant pain from the date of his injury up to the time he filed his claim, his testimony was that he believed these statements, and, relying thereon, did not file his claim with the Industrial Accident Board. These facts were pleaded by appellee, and we think thereby the issue of good cause was duly raised. New Amsterdam Casualty Co. v. Scott (Tex. Civ. App.) 54 S.W.(2d) 175, 176 (writ refused).

The third proposition is that, over appellant's objections, the trial court refused to submit the issue of good cause. The only submission made was by question No. 2, above. Appellant excepted to issue No. 2 "for the reason that such issue, if answered in the affirmative, still does not in law show good cause for plaintiff's failure to file his claim, if any he had, within...