Hotchkiss v. Texas Employers' Insurance Ass'n

• Decision Date: 27 March 1972
• Docket Number: No. 8257,8257
• Citation: 479 S.W.2d 336
• Parties: Richard HOTCHKISS, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 336

479 S.W.2d 336

Richard HOTCHKISS, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.

No. 8257.

Court of Civil Appeals of Texas,

Amarillo.

March 27, 1972.

Law Offices of Tom Upchurch, Jr., James D . Durham, Jr., Amarillo, for appellant.

Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, for appellee.

REYNOLDS, Justice.

An instructed verdict for defendant in a workmen's compensation jury trial is the subject of this appeal. Affirmed.

The parties will be referred to by their trial court designations. Plaintiff Richard Hotchkiss brought suit against defendant Texas Employers' Insurance Association to recover workmen's compensation benefits under the provisions of Texas' Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq., as amended, for an accidental injury on or about January 20, 1967. At the conclusion of plaintiff's evidence, defendant moved for an instructed verdict. The grounds stated in the motion were that there was no competent proof that plaintiff (1) gave notice of injury to defendant or the employer within the 30-day statutory period, or (2) made a claim for compensation within the six month statutory period; and (3) there was no competent evidence that plaintiff suffered a compensable incapacity as a result of the injury claimed. The motion was granted, and the trial court's comments brought forward in the statement of facts show that the verdict was instructed because plaintiff failed to give proper notice to the employer or to the defendant of the injury claimed. One point of error is advanced in which plaintiff contends that direction of verdict for defendant was erroneous because the evidence was uncontradicted that notice of injury was given within 30 days and claim for compensation was filed within six months from the date of injury.

It is too well established in our law to cite authority declaring that the instructed verdict can be justified only if no other verdict could have been rendered. To determine this we must analyze the evidence, giving credit to all evidence favorable to plaintiff and to the inferences properly drawn therefrom, and disregarding all evidence adverse to plaintiff.

Plaintiff filed this suit on March 13, 1970. In answering, defendant denied under oath that statutory notice of injury was given or that good cause existed for the failure to give notice. To prove his cause of action, plaintiff relied upon his testimony, pre-trial discovery and the introduction in evidence of exhibit no. 1, a form entitled 'Notice of Injury and Claim for Compensation.' In the pre-trial discovery procedures, plaintiff failed to induce defendant to concede that plaintiff gave notice to his employer, or that defendant had actual notice, of the injury within 30 days from the date of the claimed injury; or that plaintiff made a claim for compensation within six months from the date of the alleged injury. The first notice defendant had of the injury, according to its answer to an interrogatory, was from an inquiry made by the Industrial Accident Board in January, 1970. Defendant replied to one interrogatory that plaintiff's supervisor was one 'D. C. Hannum, foreman.' Thus, the validity of the motion for instructed verdict because of lack of statutory notice and claim must be tested by plaintiff's own testimony and his exhibit no. 1.

Plaintiff's testimony given at the trial on September 23, 1970, is summarized, except as it may be referred to verbatim. At approximately 6 a.m. on January 20, 1967, plaintiff, in the course of his employment with American Smelter and Refining Company, was either climbing in or out of a box car in the process of taking a moisture content sample when 'my foot slipped and I felt the sharp pain in my back.' No other person observed the occurrence and plaintiff did not report the event at that time. He worked that day . The next two days were his normal days off, and his testimony of what transpired when he came to work the following Tuesday morning was:

'A. * * * I told the yard man or yard boss at the time that I had hurt my back, and that I needed to come see the doctor when he came in that morning.

'Q. Who was that you told?

'A. I believe it was Amos Prater.'

Plaintiff testified that he saw the company doctor, but there is no evidence of any report of injury being made to the doctor.

On January 31, 1967, plaintiff completed and filed with the Industrial Accident Board the form designated 'Notice of Injury and Claim for Compensation,' a copy of which he introduced as exhibit no . 1. In the form he reported the January 20, 1967 injury, stated that he started losing time on January 20, 1967, and returned to work on January 24, 1967. By checking the appropriate block on the form, he requested that the Board 'Not Take Further Action Until Requested By Me.' He did not send a copy of the form to either his employer or to the defendant, and he did not notify either of them that he had made a claim for compensation.

In December, 1969, plaintiff hurt his back while shingling the roof of his house. Thereafter, in December, 1969, or in January, 1970, he requested the Board to take action on his claim for compensation for the 1967 injury.

While the Workmen's Compensation Act must be given liberal construction to carry out its evident purpose, Shelton v. Standard Ins. Co.,389 S.W.2d 290 (Tex.Sup.1965), nevertheless, the rights and obligations of the parties are controlled by the statute. Houston Fire & Casualty Ins. Co. v. Dieter, 409 S.W.2d 838 (Tex.Sup.1966). Sec. 4a of art. 8307 provides that for plaintiff to maintain his compensation proceeding, he must have given notice of the injury to the defendant or to plaintiff's employer within 30 days after the happening, and make a claim for compensation within six months after the injury. The provision contained therein permitting the Board in meritorious cases to waive strict compliance with statutory notice and claim is not before us since plaintiff neither pleaded nor offered proof of good cause for any failure to give notice and file a claim within the specified periods.

We are of the opinion that plaintiff's exhibit no. 1, the original of which was mailed to the Board eleven days following his injury, was proof of sufficient compliance with the statutory requirement for making a claim for compensation, even though the Board was requested not to take action thereon for some three years. But this notice is not evidence of knowledge by or notice to the employer or insurance carrier as required by the statute. Traders & General Ins. Co. v. Belcher, 126 S.W.2d 35 (Tex.Civ.App.--Eastland 1939, writ ref'd).

The multitude of authority on notice in workmen's compensation proceedings is in agreement that no particular form or manner of notice to the employer or the insurer is prescribed by the statute. Actual notice to the employer or to the insurer is all that is required; however, since the purpose of the notice is to enable the insurer to make an intelligent investigation of the facts to determine whether compensation is payable immediately or whether the matter is to be submitted to the Board for its determination, Booth v. Texas Employers' Ins. Ass'n., 132 Tex. 237, 123 S.W.2d 322 (1938), the notice, to strictly comply with the statute, in the absence of actual knowledge by the employer or the insurer, must be made to the employer or the insurer and apprise either of the date, time, occasion and the nature of the injury. Texas Employers' Ins. Ass'n. v. Bradshaw, 27 S.W.2d 314 (Tex.Civ.App.--San Antonio 1930, writ ref'd).

While it is settled that notice to the employee's foreman is notice to the employer, plaintiff did not notify his foreman, D. C. Hannum, of his injury. Rather, the only statement he testified about was made to one Amos Prater, whom plaintiff identified as 'the yard man or yard boss.' No other reference is made to Prater and it is not shown what connection, if any, he had with plaintiff's employer. Plaintiff did not testify that Prater was in charge of his work. Even...