James v. Texas Employers Ins. Ass'n, 1587.

• Decision Date: 16 October 1936
• Docket Number: No. 1587.,1587.
• Citation: 98 S.W.2d 425
• Parties: JAMES v. TEXAS EMPLOYERS INS. ASS'N.
• Court: Texas Court of Appeals

Page 425

98 S.W.2d 425

JAMES v. TEXAS EMPLOYERS INS. ASS'N.

No. 1587.

Court of Civil Appeals of Texas. Eastland.

October 16, 1936.

Rehearing Denied November 13, 1936.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Suit under the Workmen's Compensation Act by Raymond James to set aside an award of the Industrial Accident Board in favor of the Texas Employers Insurance Association. From a judgment notwithstanding the verdict denying relief, the plaintiff appeals.

Reversed and cause remanded.

Grisham Bros., of Eastland, for appellant.

Scarborough & Ely, of Abilene, for appellee.

GRISSOM, Justice.

The appellant, Raymond James, filed suit against the appellee, Texas Employers Insurance Association, for workmen's compensation insurance by reason of injuries suffered while working for the MacPherson Construction Company in Pennsylvania on August 11, 1930. The cause was submitted to the jury upon special issues, and the jury found that the plaintiff was totally and permanently disabled as a result of the injuries so received. The appellant had worked for approximately three weeks in Texas for the MacPherson Construction Company prior to the time he began work for the same company in Pennsylvania. The insurance carrier of said company in Texas was the appellee. Its insurance carrier in Pennsylvania was the United States Fidelity & Guaranty Company. Soon after appellant received his injuries, the United States Fidelity & Guaranty Company began paying him $15 per week, and continued such payments until about June 9, 1931, at which time appellant, through his attorneys, made a final settlement with the said Guaranty Company, receiving the sum of $2,100 in full payment and satisfaction of his claim against said company.

In June, 1934, appellant instituted the present suit. On the issue of "good cause" for the failure of appellant to sooner institute suit against the appellee he alleged, among other things, that during all of such time he believed that said Guaranty Company was the company that carried the workmen's compensation insurance covering him as an employee of the construction company. He alleged that the Guaranty Company's payments to him were made by the company also under such mistaken belief. He alleged that he was hired in Texas for the work in Pennsylvania and that the appellee was the insurance company that actually carried the workmen's compensation insurance covering him as an employee of the construction company at the time of said injury. In accord with appropriate pleadings, the court submitted to the jury on the question of good cause the following special issues:

"Do you find from a preponderance of the evidence that at all times from about the date of his injury until June, 1934, the plaintiff believed that the United States Fidelity & Guaranty Company was the company that carried the workmen's compensation insurance covering plaintiff as an employee of MacPherson Construction Company?

"Do you find from a preponderance of the evidence that the lawyers representing the plaintiff when the settlement was made between him and the United States Fidelity & Guaranty Company, stated to plaintiff that said settlement was final and would prevent him from recovering any further compensation on account of his injuries?

"Do you find from a preponderance of the evidence that at all times prior to June, 1934, the plaintiff believed said statement made to him by said lawyers (if they did make such statement)?

"Do you find from a preponderance of the evidence that the facts as you have found them in answers to the foregoing special issues constituted `good cause' for plaintiff's failure to file his claim for compensation with the Industrial Accident Board of Texas before the time he did file same?"

All of which questions were answered by the jury, "Yes."

Without setting out all the issues submitted to the jury and the jury's answers thereto, it is sufficient to say that if the answers were supported by pleadings and evidence, they were sufficient to authorize a judgment in favor of the appellant against the appellee for total and permanent disability.

The appellee filed its motion for judgment non obstante veredicto, which motion was granted by the court and judgment entered for the appellee.

By numerous assignments of error, appellant contends in substance (1) that when a verdict is returned in answer to special issues, it is the duty of the court to follow such verdict and conform its judgment thereto. The assignments presenting this question are overruled.

Article 2211, as amended by the Acts of the Legislature 1931, c. 77, § 1 (Vernon's Ann.Civ.St. art. 2211), expressly provides that "upon motion and reasonable notice the Court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence." We think it is apparent from the language of the article, as amended, the Legislature intended that if the court, after submitting the cause to the jury upon special issues, concluded that he had erred in not instructing a verdict he might, after the jury had answered the issues submitted, obtain the same result as would have been obtained by an instructed verdict by rendering a judgment for the party for whom he should have in the first instance instructed a verdict. We understand that the courts have so construed said statute. Waitz v. Uvalde Rock Asphalt Co. (Tex. Civ.App.) 58 S.W.(2d) 884; Spence v. National Life & Acc. Ins. Co. (Tex.Civ. App.) 59 S.W.(2d) 212; Simmonds v. St. Louis, B. & M. Ry. Co. (Tex.Com.App.) 91 S.W.(2d) 332; 25 Tex.Jur. § 114, p. 501.

The second contention of the appellant is that a motion must be made to set aside the verdict and favorable action had on the motion, thus disposing of the verdict, before the entry of the judgment. We do not so understand the statute. The only motion that is required is a motion for judgment notwithstanding the verdict. As heretofore stated, the evident purpose of the act was to simplify that procedure by permitting the trial court to disregard the jury finding not supported by the evidence, and to render judgment for the party for whom he should have instructed a verdict in the first instance. Smith v. El Paso & N. E. Ry. Co. (Tex.Civ.App.) 67 S.W.(2d) 362.

Appellant's third point presents the proposition that the action of the court in rendering judgment for the appellee notwithstanding a verdict, which verdict on its face authorized a judgment for the appellant, was erroneous, because the issue of good cause was tendered by the pleadings and supported by the proof. Appellant's assignments presenting this contention are sustained. In order for the trial court to have disregarded the jury's findings on the issue of good cause, the trial court must have and evidently did find that there was no evidence supporting the issue of good cause, and must have concluded that as a matter of law good cause was not shown.

It has been determined that a claimant under the Workmen's Compensation Act is conclusively presumed to have notice that his employer has made provision for compensation insurance and he cannot plead absence of actual knowledge as good cause for failure to give notice of his claim or bring suit within the time prescribed by statute. Zurich General Acc. & Fidelity Ins. Co. v. Walker (Tex.Com. App.) 35 S.W.(2d) 115; article 8306, § 3c, R.S. 1925. But it has been held by this...