Hayes v. Commercial Standard Ins. Co.

• Court: Texas Court of Appeals
• Writing for the Court: Brown
• Citation: Hayes v. Commercial Standard Ins. Co., 140 S.W.2d 250 (Tex. App. 1940)
• Decision Date: 12 April 1940
• Docket Number: No. 14055.,14055.
• Parties: HAYES et al. v. COMMERCIAL STANDARD INS. CO.

140 S.W.2d 250

HAYES et al. v. COMMERCIAL STANDARD INS. CO.

No. 14055.

Court of Civil Appeals of Texas. Fort Worth.

April 12, 1940.

Rehearing Denied May 17, 1940.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Suit under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., by Mattie Mae Burleson to set aside an award of the Industrial Accident Board in favor of the Commercial Standard Insurance Company, insurance carrier. From a judgment denying relief, the plaintiff, who in the meantime had married, and who had become Mrs. Mattie Mae Burleson Hayes, and her husband appeal.

Judgment reversed, and cause remanded.

Geo. C. Kemble and S. Langford Carlton, both of Fort Worth, and Lillard & Gibbons, of Oklahoma City, Okl., for appellants.

Buck & Knapp, of Fort Worth, for appellee.

BROWN, Justice.

This is a Workmen's Compensation case that has caused us no little concern.

We apologize for not having decided the case sooner, but our desire to reach an unanimous conclusion, after repeated consultations, has prompted the delay.

Mattie Mae Burleson, an unmarried minor, was employed as a waitress, in the Coffee Shop of the Texas Hotel (of Fort Worth) and on or about November 29th, 1937, claims that she sustained a fall, by slipping on a wet, "slick" place, from which she sustained bodily injuries. Her chief complaint is that the fall tore her uterus from its natural place, causing her the flooding, pain and suffering upon which she relies to sustain her suit for compensation.

She did not file her claim and give notice until early in September, 1938, and she alleged that she had good cause for not doing so sooner, in that she did not know until on or about August, 1938, that her fall was the cause of her injuries; that she was not advised by any physician who treated her prior to August, 1938, that the fall caused her injuries; that she was a girl about 20 years old, and not skilled in medical matters; that had she known the true facts she would have filed her claim, etc., sooner.

Her claim was refused by the Industrial Accident Board, as shown by its judgment, solely upon the theory that the evidence adduced by her failed to show that her condition is the result of an accidental injury suffered in the course of her employment.

Having appealed from the Board's award, the cause was lodged in the District Court of Tarrant County and tried to a jury. When the taking of evidence was concluded, the trial court instructed the jury to return a verdict for the defendant insurance carrier on its motion therefor.

Judgment was rendered for the defendant and the plaintiff and her husband, whom she married since filing her suit, have appealed.

The trial court must have instructed a verdict for the defendant upon the theory that under the testimony it has been shown that good cause for not sooner giving notice and filing her claim does not exist as a matter of law. That is to say, that, viewing the evidence adduced from every standpoint, reasonable minds cannot differ on the question of whether or not this claimant has shown good cause for not presenting her claim sooner.

One of the outstanding cases before our Supreme Court is that of Mingus v. Wadley et al., 115 Tex. 551, 285 S.W. 1084, and in that case we are admonished to construe liberally the Workmen's Compensation Acts out of which the cause before us grows (Art. 8307, Rev. Civil Statutes).

We do not believe that it will serve any good purpose to set out in this opinion all of the evidence and testimony, which must be looked to in determining whether or not an issue of fact, on the question of "good cause" for not sooner giving notice and filing a claim, is shown.

No two cases will ever be exactly alike, and we shall content ourselves with saying that the evidence is conflicting, in that the claimant's testimony is, in several instances, shown to be contradictory.

We take it that, in such a situation, even though it may appear to us that the overwhelming preponderance of the evidence is to the effect that the claimant did not show "good cause" for not sooner presenting her claim, nevertheless we are not privileged to act upon such hypothesis here, because the trial court has refused to permit the jury to weigh such evidence and to make findings thereon.

For the reason that we do not believe we have such right here, it follows that the trial court had no such right to do so, in a cause tried to a jury.

The very recent case of New St. Anthony Hotel Co. v. Pryor et al., Tex.Civ. App., 132 S.W.2d 620, in which a writ was refused, clearly states the rule respecting the disposition of a case before a jury, where the plaintiff's testimony is conflicting. An issue is thus raised for the jury to determine. Many cases are cited.

We believe that the issue of "good cause" for not sooner giving notice and filing her claim is raised by the evidence and that the trial court erred in instructing a verdict for the defendant.

Such cases as Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053; Texas Employers Ins. Ass'n v. Roberts, 116 S.W.2d 417 (by our court, and in which a writ was granted but not on the issue here presented), and many cases cited in the opinion by Mr. Justice Speer; Traders & General Ins. Co. v. Jacques et al., Tex.Civ. App., 131 S.W.2d 133, writ dismissed—correct judment; Texas Employers Ins. Ass'n v. Little, Tex.Civ.App., 96 S.W.2d 677, writ dismissed. Many other cases could be cited, and many are cited in the opinions noted supra.

We believe that the instant suit, which is shown to have arisen over internal injuries affecting the procreative organs of a young woman, about twenty years of age, unmarried and untutored in diseases peculiar to women, under the circumstances shown in this record, distinguishes her case from those relied upon by the appellee, viz; Fox v. Texas Employers' Ins. Ass'n, Tex.Civ. App., 94...