Harkey v. Texas Employers' Ins. Ass'n

• Decision Date: 18 February 1948
• Docket Number: No. A-1417.,A-1417.
• Citation: 208 S.W.2d 919
• Parties: HARKEY v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Supreme Court

208 S.W.2d 919

HARKEY v. TEXAS EMPLOYERS' INS. ASS'N.

No. A-1417.

Supreme Court of Texas.

February 18, 1948.

Rehearing Denied March 24, 1948.

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

Suit under the Workmen's Compensation Act by H. L. Harkey to set aside an award of the Industrial Accident Board in favor of Texas Employers' Insurance Association. Judgment for plaintiff was reversed by Court of Civil Appeals, 208 S.W. 2d 915, and plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

Richard Critz, of Austin, John J. Watts, and Mike R. Mason, both of Odessa, and Critz, Kuykendall, Bauknight, Mann & Stevenson, of Austin, for petitioner.

Whitaker, Turpin, Kerr, Smith & Brooks and Robert Turpin, all of Midland, for respondent.

BREWSTER, Justice.

This is a suit for workman's compensation filed by H. L. Harkey, petitioner, against Texas Employers' Insurance Association, respondent. A trial court judgment for petitioner was reversed by the Court of Civil Appeals and the cause was remanded to the trial court. 208 S.W.2d 915.

The questions for decision relate to the matter of good cause for the failure of petitioner to file with the Industrial Accident Board his claim for compensation within six months after he received his injuries; and they involve the construction and application of Rules 67, 90, and 279, Texas Rules of Civil Procedure.

As good cause for failure to file his claim within the time required by law, petitioner alleged that "he was advised by the doctors for the defendant insurance carrier that his injuries were not serious and that he had recovered from same and was in perfect shape to return to work, and * * * that he did return to work and was able to work for a period of several months until on or about January 17, 1946, at which time he began having severe headaches and dizziness and discovered that his injuries were serious and thereupon he immediately filed claim for compensation * * *."

Petitioner testified that he did not file his claim within the six months' period because "Dr. Clayton told me I would be all right and could go back to work in about 30 days, or in 30 days, anyhow, and that I couldn't go back to work before that on account of my hand would be too sore"; that he believed Dr. Clayton and relied upon what he said; that he went back to work approximately four weeks from the time he got hurt and worked about a month, when he "began to feel worse and have headaches all the time, every day"; that his headaches grew worse but that he continued to work until some time in January, 1946, with a loss of only three or four days.

Respondent offered no objection that this testimony was not supported by petitioner's pleadings.

The issues submitting good cause were in substantial conformity with petitioner's testimony and were as follows:

"Do you find from a preponderance of the evidence that Dr. Clayton advised plaintiff that he was not seriously injured and could return to work in thirty days?"

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

"Do you find from a preponderance of the evidence that plaintiff relying on said doctor's representations (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?"

"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."

Respondent timely objected to each of these issues "because there is no pleading authorizing the submission of such issue."

In support of his contention that the judgment of the court of civil appeals should be reversed and that of the trial court affirmed, petitioner presents two points of error. The first is that since his testimony as to good cause was admitted without objection and since no exception was taken to his petition for failure affirmatively to allege reliance upon the advice of Dr. Clayton, the issues were tried by implied consent of the parties and must be treated as if they had been alleged in his petition, under Rules 67 and 90, supra.

There are several distinct factual bases for good cause under Art. 8307, sec. 4a, R. S. 1925, Vernon's Ann. Civ. St. art. 8307, § 4a. Claimant's belief in good faith that his injuries are not serious is one, provided a reasonably prudent person in the same or similar circumstances would have delayed filing his claim. Texas Employer's Insurance Association v. Clark, Tex.Civ.App., 23 S.W.2d 405, error dismissed. And while such belief continues, the fact that almost constant pain exists does not affect the issue; since pain and suffering are not compensable. Texas Employers' Ins. Ass'n v. Roberts, 135 Tex. 123, 139 S.W.2d 80. Advice from a physician that his injuries are not serious constitutes good cause for failure to file a claim within the prescribed time, provided the claimant, in the exercise of ordinary care, believes and relies upon that advice. Consolidated Underwriters v. Pruitt, Tex. Civ.App., 180 S.W.2d 461, er. ref., want of merit.

His allegations showed clearly that petitioner was basing his excuse for the tardy filing of his claim on his own belief that his injuries were not serious, under the factual situation dealt with in the Clark and Roberts cases, supra. Although he did allege that respondent's doctor advised that his injuries were not serious and that he was in perfect shape to return to work, the remainder of his allegations are inconsistent with any idea that he returned to work because he believed and relied on what the doctor told him. On that point he says: "Plaintiff alleges that he did return to work and was able to work for a period of several months, until on or about January 17, 1946, at which time he began having severe headaches and dizziness and discovered that his injuries were serious * * and plaintiff pleads the foregoing facts as constituting good cause for failing to file claim for compensation...