Lloyds Casualty Co. v. Meredith

• Decision Date: 26 October 1933
• Docket Number: No. 2382.,2382.
• Citation: 63 S.W.2d 1051
• Parties: LLOYDS CASUALTY CO. v. MEREDITH.
• Court: Texas Court of Appeals

63 S.W.2d 1051

LLOYDS CASUALTY CO. v. MEREDITH.

No. 2382.

Court of Civil Appeals of Texas. Beaumont.

October 26, 1933.

Rehearing Denied November 1, 1933.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by May Meredith against Lloyds Casualty Company. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Smith, Smith & Boyd, of Beaumont, for appellant.

Howth, Adams & Hart, of Beaumont, for appellee.

WALKER, Chief Justice.

This was an action for compensation under the provisions of our Workmen's Compensation Act, filed by appellee, Mrs. May Meredith, against appellant, Lloyds Casualty Company, as an appeal from an adverse award of the Industrial Accident Board, with Joe Salhab, doing business in the city of Beaumont as the operator of a restaurant under the business name of White Kitchen Café, as the employer, appellee, May Meredith, one of Salhab's waitresses, as employee, and appellant, Lloyds Casualty Company, as the insurance carrier. It was the contention of appellee that on May 9, 1930, while in the due course of her employment and in the due discharge of her duties as a waitress, she accidentally slipped and fell upon the concrete floor of the kitchen of the café "with suddenness and great force, thereby seriously and permanently injuring her spine and the nerves of her spinal column and the nerves running from and to said spinal column (the exact nature of said injury being unknown to plaintiff, for which reason she is unable to plead the same more definitely) as a result of which she has suffered continuous pain and general weakness of such a nature as to be unable to work and earn money from the date of said injury up to the present time." On these allegations of injury she prayed for compensation as for total permanent incapacity and in the alternative for partial incapacity. The answer of appellant was sufficient in all respects to support its propositions of error advanced on this appeal. Upon the verdict of a jury appellant was given judgment for permanent partial incapacity for three hundred weeks at the rate of $20 per week.

By its first four propositions appellant complains that the trial court erred in refusing to sustain its pleas in abatement and of want of jurisdiction of the trial court. The facts under these propositions are as follows: Appellee was injured in the manner pleaded by her on May 9, 1930, at which time she was a married woman. The Industrial Accident Board made its final award in her claim on April 7, 1931. In due time, on May 12, 1931, she filed her petition in the district court of Jefferson county, as an appeal from that award. Though a married woman, her husband was in no way a party to the proceedings before the Industrial Accident Board, nor did appellee make him a party herein, but described herself in her original petition as a feme sole. On August 29, 1931, appellee's husband was awarded a divorce from her on allegations of adultery. She knew of these allegations, but made no denial thereof, and, in fact, made no defense to the divorce suit. On the 13th day of November, 1931, her divorced husband assigned to appellee, by an instrument in writing, all his right, title, and claim in and to her cause of action, accruing to him as part of their community estate. Appellee was married in 1928, and shortly after the marriage her husband abandoned her and never afterwards made any contribution to her support nor claim of any kind to her wages. This case was tried on March 9, 1932. On March 7, 1932, appellee filed her motion, alleging generally the facts as stated above, and prayed for an order of the court, permitting her to prosecute her suit as a feme sole, which was in all things granted. Appellant filed its plea in abatement and to the jurisdiction of the court, based on the facts above stated, advancing the propositions that the husband was a necessary party to appellee's original petition to give the court jurisdiction of her appeal from the award of the Industrial Accident Board and, because he was not a party to the original proceeding, the court had no jurisdiction of her cause of action. As we construe the opinion of the Commission of Appeals in Jago v. Indemnity Ins. Co. of North America, 120 Tex. 204, 36 S.W.(2d) 980, appellant's contention was squarely before the court and affirmatively denied. The writer's personal views on this proposition were expressed in his dissenting opinion in the Jago Case, 12 S.W.(2d) 817, when it was pending before us. The opinion of the Commission of Appeals denied his theory of the law.

Though appellee was injured on May 9, 1930, her claim was not filed with the Industrial Accident Board until the 26th of December, 1930. She pleaded "good cause," as defined by this court in Consolidated Underwriters v. Seale (Tex. Civ. App.) 237 S. W. 642, as an excuse for not filing her claim within the statutory period of six months. By its eighth proposition appellant asserts that the evidence was insufficient to raise the issue of "good cause"; by the ninth proposition, that the verdict of the jury on that issue was against the great and overwhelming weight of the testimony; and by the tenth proposition, that, on the evidence on that issue, the trial court was without jurisdiction to entertain appellee's cause of action. These propositions are overruled. The following excerpts from appellee's brief, which we adopt as a fair statement of her theory of the facts, fully support the jury's verdict and the jurisdiction of the court on the issue of "good cause":

"From the cross examination of Mr. Joe Salhab, employer of plaintiff, it is evident that he knew of the alleged injury of May 9, 1930, and immediately thereafter informed plaintiff that Joe Lederer was agent for the defendant, Lloyds Casualty Company, and that said company was carrying compensation for him (Joe Salhab) at that time.

"Plaintiff testified that she went to the office of Mr. Joe Lederer within less than thirty days after the date of said injury and that Mr. Joe Lederer fixed up some papers for her and told her that he would attend to all the matters involved in her behalf and plaintiff further testified that she relied upon said promises of Mr. Joe Lederer.

"Plaintiff further testified that between May 9, 1930, and December 22, 1930, (the date upon which plaintiff's claim for compensation was filed) that the condition of her health with respect to being able to attend to her business was bad and that she was in bed most of the time."

The bad health of appellee, the fact that her employer knew of her injury immediately after it was received, her visit to the office of appellant's agent, Mr. Lederer, and the promises made by him to her, as testified to by her, and her reliance on his promises, bring this case clearly within the rule announced by the following authorities: Texas Indemnity Ins. Co. v. Holloway (Tex. Civ. App.) 30 S.W. (2d) 921; Home Life & Accident Co. v. Orchard (Tex. Civ. App.) 227 S. W. 705; Texas Employers' Ins. Ass'n v. Price (Tex. Civ. App.) 300 S. W. 667, writ dismissed 117 Tex. 173, 300 S. W. 672; Texas Employers' Ins. Ass'n v. Fricker (Tex. Civ. App.) 16 S.W.(2d) 390.

We have examined with extreme care the testimony on the issue of the extent of appellee's injuries, and believe it is sufficient to support the verdict of permanent partial incapacity. It would serve no useful purpose to review this testimony in detail. Appellant's testimony...