Maryland Casualty Co. v. Merchant

• Court: Texas Court of Appeals
• Writing for the Court: Bond
• Citation: Maryland Casualty Co. v. Merchant, 81 S.W.2d 794 (Tex. App. 1935)
• Decision Date: 23 March 1935
• Docket Number: No. 11894.,11894.
• Parties: MARYLAND CASUALTY CO. v. MERCHANT.

81 S.W.2d 794

MARYLAND CASUALTY CO. v. MERCHANT.

No. 11894.

Court of Civil Appeals of Texas. Dallas.

March 23, 1935.

Rehearing Denied April 20, 1935.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suit by Maryland Casualty Company against Louise Merchant to set aside an award of compensation granted by Industrial Accident Board pursuant to proceeding brought under Workmen's Compensation Act. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Robertson, Robertson & Payne and J. L. Lancaster, Jr., all of Dallas, for appellant.

John W. West and J. A. Carlisle, both of Dallas (J. M. Willis, of Dallas, on the brief), for appellee.

BOND, Justice.

This suit arose under the Workmen's Compensation law (article 8306, et seq. R. S. 1925, as amended [Vernon's Ann. Civ. St. art. 8306 et seq.]). The appellant sustained her alleged injuries on August 13, 1932, and filed a claim for compensation therefor with the Industrial Accident Board on April 8, 1933. From an award by the Industrial Accident Board, appellee appealed to the district court, and after a trial before a jury upon special issues, judgment was entered against appellant for $2,303.56, payable in a lump sum for accrued and future compensation; $250 for operation and medical expenses; and $89 for hospital bills.

It was contended in the court below by appellant, Maryland Casualty Company, the insurance carrier, and properly presented here by assignment of error, that the claim for compensation having been filed with the Industrial Accident Board, more than six months from the date of the alleged injury, and no "good cause" shown for not sooner filing same, the claim is barred. Article 8307, § 4a, R. S. 1925, provides: "Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of same; or, in case of death of the employee or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the board." The undisputed facts disclose that the claim was not actually filed for approximately eight months after the alleged injury was received. In the pleadings of appellee, the "good cause" asserted for the failure to file the claim within the six months' period is, as follows: "That two or three days after she was injured she told Mr. R. S. Bell, Treasurer of the Skillern & Sons, or its agent, about her being injured, and that at that time the said R. S. Bell, acting as agent for Skillern & Sons, assured her that he would file all necessary claim blanks with the Industrial Accident Board; that she relied on said representations made by said agent, and did not know until April 6th, 1933, that said claim blanks had not been filed with said board; and further, that she went to the hospital in January, 1933, where she remained for some time; that on April 6th, 1933, when she filled out her claim blank she was physically and mentally incapable of transacting business or filling out any kind of blanks, and that she did not learn that the same had not been filed for her by Skillern & Sons until in April, 1933." Skillern & Sons, Inc., was her employer. We have carefully considered the evidence offered, and it fully supports appellee's claim for "good cause" as alleged, and the majority of this court conclude that the pleadings and evidence are sufficient to raise the issue for the determination of the court or jury.

The majority express the view that while the statutory claim for compensation must be filed with the Industrial Accident Board within the six months' period to proceed under the employers' liability act, yet the act as a whole must be given a liberal construction to accomplish the evident intent and purpose of the Legislature in affording a remedy to take care of unforeseen contingencies that might arise in the progress of the proceedings. In providing that the court or board for good cause, in meritorious cases, may waive the strict compliance with the limitations as to notice and the filing of claim before the board, confers a discretionary power on the board or court to be exercised in determining the existence of a good cause. The act does not define the term "good cause," if, in fact, it could be adequately defined to meet every contingency that might arise. Thus, it must be determined by the exegesis of the facts and circumstances of each case. There can be no fast rule laid down to apply to the term, thus the Legislature has left it to the sound discretion of the board or court to determine the issue, reviewable only for abuse of such discretion.

The majority express the opinion that the act requires the injured employee to prosecute his claim for compensation with that degree of diligence that an ordinary person would exercise under the same or similar circumstances or would not do under the same or similar circumstances; that is to say, if an ordinary person, having confidence in his employer, being always obedient to his orders and subservient to his wishes, and relying on his promises, would intrust to him to prepare and file the statutory claim for compensation, then the claim for compensation would not be barred by the limitations. The issue raised is an issue of fact. The record reveals that appellee for some time prior to the injury had been working as a soda fountain dispenser for Skillern & Sons, Inc.; on the day of the injury, she told her employer of the occurrence and on the next day a Mr. Aston, vice president of Skillern & Sons, told her to go to see a Dr. Fay Fry for treatment, and in obedience to his request, she did go to Dr. Fry and was treated by her for the injury sustained; three or four days thereafter she went back to the place of her employment, saw Mr. Aston again, and he sent her to the company's office and there she met a Mr. Bell, an employee of Skillern & Sons, who occupied a desk in the office and in conversation with him he filled in the blank forms of claims for compensation, caused her to sign the same and "told her that he would send them to the Industrial Accident Board at Austin, Texas." Appellee further testified that she trusted Mr. Bell and her employer and relied upon the promises and agreements made by Mr. Bell, and did not know that he had failed to send the claim for compensation to Austin until about April 6, 1933. In view of these facts, the conclusion is reached by the majority of this court that the issue was clearly raised that appellee acted as an ordinarily prudent person would have acted under the same or similar circumstances, and supports her claim for "good cause" to warrant the board or court to waive the limitations for the filing of the claim during the six months' period. In support of the views expressed by the majority, is the pronouncement of the Beaumont Court of Civil Appeals in the case of Consolidated Underwriters v. Seale et al., 237 S. W. 642, writ of error dismissed by our Supreme Court.

While appellee's...