Latcholia v. Texas Employers Ins. Ass'n

• Decision Date: 02 December 1942
• Docket Number: No. 2427-7925.,2427-7925.
• Citation: 167 S.W.2d 164
• Parties: LATCHOLIA v. TEXAS EMPLOYERS INS. ASS'N.
• Court: Texas Supreme Court

167 S.W.2d 164

LATCHOLIA v. TEXAS EMPLOYERS INS. ASS'N.

No. 2427-7925.

Commission of Appeals of Texas, Section A.

December 2, 1942.

Rehearing Denied January 13, 1943.

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

Action under the Workmen's Compensation Act by Kenneth Latcholia against the Texas Employers Insurance Association, insurance carrier, to set aside an award of the Industrial Accident Board. Judgment in favor of the employee was reversed by the Court of Civil Appeals, 154 S.W.2d 146, and the employee brings error.

Judgment of Court of Civil Appeals reversed, and trial court's judgment affirmed.

Pipkin & Pipkin, Charles S. Pipkin, and Elton Cruse, all of Beaumont, for plaintiff in error.

Marcus & Carrington and David C. Marcus, all of Beaumont, for defendant in error.

HICKMAN, Commissioner.

This is a workmen's compensation case in which the employee, Kenneth Latcholia, a minor suing by his father as next friend, was awarded judgment in the trial court in a lump sum upon a verdict of the jury finding total and permanent disability. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of the insurer. 154 S.W.2d 146.

The record discloses that notice of injury was not given to the association or subscriber within thirty days after the happening thereof, and neither was a claim for compensation with respect thereto filed within six months, as prescribed in Article 8307, Sec. 4a, R.C.S. The jury made findings of good cause for the failure to comply strictly with the foregoing limitations as to notice and the filing of a claim, but the Court of Civil Appeals held that the employee neither pleaded nor proved good cause. It was the view of the Court of Civil Appeals that no fact constituting an element of good cause was pleaded or proved, except possibly the fact of minority, and that minority alone could not constitute good cause. That court recognized that it had theretofore made a contrary holding in Maryland Casualty Co. v. Landry, Tex.Civ.App., 129 S. W.2d 755, but concluded that such holding had been overruled by a later opinion of the Supreme Court in Commercial Standard Insurance Co. v. Hayes, 135 Tex. 288, 142 S.W.2d 897. The correctness of that conclusion will be considered later in this opinion.

The record discloses that while riding a bicycle as a delivery boy for his employer in the course of his employment, the minor fell and suffered a serious injury to his hip. He was about 17 years of age at that time. He did not notify his employer of his injury, nor did he notify his parents. This, for the reason that he feared they would not permit him to continue on his job. When he reached home that night he complained to his mother of the pain in his leg and she diagnosed his trouble as rheumatism. He was unable to go to work the next morning and his mother informed the employer that he had rheumatism in his leg. His condition did not improve and he was never able to return to work. It was several months after he sustained his injuries before he informed his mother about falling from his bicycle. Immediately thereafter his mother notified his employer and was advised that the employer carried compensation insurance. His employer at once notified the respondent, Texas Employers Insurance Association, the insurance carrier, which proceeded to make an investigation. Nothing came of the investigation. The claim for compensation was filed with the Industrial Accident Board more than eight months after the employee sustained his injuries and four months after his mother notified his employer thereof. The minor had no guardian and no one came forth to act as his next friend until his father filed claim and thereby instituted the present proceeding more than eight months after the injuries were sustained. From the foregoing recital it is apparent that there is presented for decision in this case the question of whether the provisions of the statute (Art. 8307, sec. 4a) with reference to giving notice within thirty days and filing a claim within six months apply alike to minors and adults.

Probably no question connected with workmen's compensation law is more novel and has brought forth a greater volume of writing than the question of the status of minor employees under such law. There having been no authoritative decision of the exact question here presented in this jurisdiction, we have made a rather extended investigation of the authorities in other jurisdictions. Of the many cases which we have considered, the following we think, are typical of the rest: United States Fidelity & Guaranty Co. v. Cruce, 129 Okl. 60, 263 P. 462, 56 A.L.R. 879; Lineberry v. Town of Mebane, 219 N.C. 257, 13 S.E.2d 429; Walgreen Co. v. Industrial Commission, 323 Ill. 194, 153 N.E. 831, 48 A.L.R. 1199; Jordan v. Industrial Accident Commission et al., 40 Cal.App. 276, 104 P.2d 695; Porter v. Liberty Mutual Ins. Co., 46 Ga. 86, 166 S.E. 675; Moore v. Nashville Union Stockyards, Inc., 169 Tenn. 638, 90 S.W.2d 524; Franse v. Knox Porcelain Corporation, 171 Tenn. 49, 100 S.W.2d 647; Minturn v. Proctor & Gamble Mfg. Co., 102 Kan. 885, 172 P. 17; Matlock v. A. Leschen & Sons Rope Co., Mo.App., 43 S.W.2d 871; Westrich v. Industrial Commission of Ohio, 50 Ohio App. 234, 197 N.E. 823; Gillette v. Delaware L. & E. R. Co., 91 N.J.L. 220, 102 A. 673; Winter v. City of Niagara Falls, 190 N.Y. 198, 82 N.E. 1101, 123 Am.St.Rep. 540, 13 Ann.Cas. 486.

We have also considered cases in which minor dependents, as distinguished from minor employees, were the claimants. The questions presented in those cases are closely akin to those in cases of minor employees. A few typical cases in this branch of the law are: Maryland Casualty Co. v. Lawson, 5 Cir., 110 F.2d 269; Hiebert v. Howell, 59 Idaho 591, 85 P.2d 699, 120 A.L.R. 388; Fogarty et al v. Department of Industrial Relations of California, 206 Cal. 102, 273 P. 791; Durham v. Durham, 59 Ga.App. 438, 1 S.E.2d 207; Suttle et al. v. Marble Produce Co., 140 Kan. 13, 34 P.2d 116; Ashland Iron & Mining Co. v. Fowler, 208 Ky. 422, 271 S.W. 589; Miller et al. v. Industrial Commission, 106 Colo. 364, 105 P.2d 404; Ray et al. v. Sanitary Garbage Co., 134 Neb. 178, 278 N.W. 139; Allen v. St. Louis & San Francisco Ry. Co., 90 S.W.2d 1050; Bankers Trust Co. of Detroit v. Tatti, 258 Mich. 357, 242 N.W. 777.

It appears from an examination of the above authorities that there is no fixed rule or principle of decision established, but that the question is one of the construction of statutes which vary materially in different jurisdictions. There are, however, two distinct methods of approach to the question. One is well illustrated by this language taken from the opinion of the Supreme Court of Oklahoma in United States Fidelity & Guaranty Co. v. Cruce, supra [129 Okl. 60, 263 P. 466, 56 A.L.R. 879], as follows: "* * * It set up a new tribunal, clothed with new powers, to do a new job and in a new way; * * *."

In that case it was held that there was no distinction to be drawn between minors and adults, and that a minor employee could maintain a compensation proceeding in his own name without being represented therein by a guardian or next friend even though the Workmen's Compensation Law of Oklahoma, 85 O.S.1941 § 1 et seq., was silent with respect thereto. Another method of approach is well illustrated by the following language taken from the opinion of the Supreme Court of North Carolina in Lineberry v. Town of Mebane, supra [219 N.C. 257, 13 S.E.2d 430]: "It would create an anomalous situation to hold that a claimant who is without capacity to receive and receipt for compensation or to assert his right must nevertheless present his claim or forever thereafter be barred from so doing. Such an interpretation would be as unjust to the employer as to the employee."

And the following language by the Supreme Court of Illinois, in its opinion in Walgreen Co. v. Industrial Commission, supra [323 Ill. 194, 153 N.E. 832, 48 A.L.R. 1199]:

"* * * From time immemorial the status of a minor of tender years has been recognized in law to be different from that of one of more mature years.

* * * * *

"By law a minor could not commence a legal suit or proceeding in his own name, but such suit or proceeding could only be commenced and prosecuted on behalf of a minor by his next friend or by his guardian appointed `pursuant to law,' on whom was imposed the statutory duty of appearing for and representing his ward in all legal suits and proceedings unless some other person was appointed for that purpose or the suit or proceeding was brought on behalf of the minor by his next friend. That minors were not considered by the Legislature in enacting the law of 1911 as having the same status as adult persons is evidenced by the fact that section 5½ of the act provided that the employer liable to pay lump sum compensation might petition for the appointment of a guardian where no guardian had been appointed."

Of the two methods of approach we favor that adopted in North Carolina and Illinois, as reflected by the above quotations.

When our Workmen's Compensation Statutes (Article 8306 et seq.) are examined it clearly appears that our Legislature never intended to place minor employees in the same status as adult employees. This conclusion is compelled from a consideration of the act as a whole. The article bearing more specifically on the question here for decision is Art. 8306, Sec. 13, which we here quote: "If an injured employé is mentally incompetent or is a minor or is under any other disqualifying cause at the time when any right or privileges accrue to him or exist under this law, his guardian or next friend may in his behalf claim and exercise such rights and privileges except as otherwise herein provided. In case of partial incapacity or temporary total incapacity, payment of compensation may be made direct to the minor and his receipt taken...