Moronko v. Consolidated Mutual Insurance Co.

• Decision Date: 04 December 1968
• Docket Number: No. B--861,B--861
• Citation: 435 S.W.2d 846
• Parties: Linda Kathryn MORONKO et vir, Petitioner, v. CONSOLIDATED MUTUAL INSURANCE COMPANY, Respondent.
• Court: Texas Supreme Court

Page 846

435 S.W.2d 846

Linda Kathryn MORONKO et vir, Petitioner, v. CONSOLIDATED MUTUAL INSURANCE COMPANY, Respondent.

No. B--861.

Supreme Court of Texas.

Dec. 4, 1968.

Rehearing Denied Jan. 8, 1969.

Schulman & Powell, William R. Powell, Huston, for petitioner.

Zimmerman & Jones, Harry S. Jones and Stephen N. Zimmerman, Houston, for respondent.

HAMILTON, Justice.

This is a workmen's compensation case in which the issue is whether there was evidence to support a jury finding that the claimant had 'good cause' for her failure to file a claim within six months after the date of her injury. Mrs. Moronko, the petitioner, fell down an escalator and was injured while working as a saleslady at J. J. Newberry's on May 25, 1965. Although the six month statutory period for filing a workmen's compensation claim expired November 25, 1965, Mrs. Moronko did not file her claim with the Industrial Accident Board until January 12, 1966.

After Mrs. Moronko received her injury, Newberry's compensation carrier and the respondent, Consolidated Mutual Insurance Company, began paying $30.00 weekly benefits to Mrs. Moronko, and continued to do so until December 14, 1965. There is testimony in the record that an agent of the respondent made representations to Mrs. Moronko during this time that she '* * * (shouldn't) worry, everything is taken care of.'

At trial, the jury answered affirmatively special issues which found that Mrs. Moronko relied upon those representations and the weekly payments as proof that her claim had been filed. Other special issues found that his reliance constituted good cause for her failure to file her claim '* * * up until the time the same was filed.' After the answers to the issues were returned the trial court rendered judgment for petitioner for total and permanent incapacity.

The Houston Court of Civil Appeals reversed and remanded the cause. 425 S.W.2d 838. The Court of Civil Appeals held that there was no evidence of probative force to suppor the affirmative jury answer that the representations or the payments constituted good cause for petitioner not to file her claim until January 12, 1966. The Court of Civil Appeals based its holding on the facts that the representations and payments stopped respectively on December 7, 1965, and December 14, 1965, and hence there was no reason to excuse Mrs. Moronko's delay from these dates until January 12, 1966. The Court of Civil Appeals did, however, note the presence of some evidence about her consulting an attorney during this mid-December to January 12 period, and reversed and remanded for an issue of good cause for that period of time.

The petitioner, Mrs. Moronko, contends that there was evidence to support the jury finding that she had good cause to delay filing her claim until January 12, 1966.

The general rule in determining whether a claimant for workmen's compensation meets the burden of proof in showing that there was 'good cause' for a delay past the statutory filing period was stated by this Court in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (Tex.Sup.1948). In Hawkins, this Court reversed the lower court judgment denying recovery because good cause was not shown as a matter of law, and enunciated the basic rule that:

'The term 'good cause' for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. Consequently, whether he has used the degree of diligence required is ordinarily a question of fact to be determined by the jury or the trier of facts. It may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other reasonable conclusion.' 207 S.W.2d 370, 372.

In Texas Employers Inx. Assn. v. Fowler, 140 S.W.2d 545 (Tex.Civ.App.--Amarillo 1940, writ, ref'd), a situation similar to the case at bar was faced by the court. As in the case we are now considering, the jury there found that a reasonably prudent claimant would have delayed the filing of his claim for the length of time that he did. The evidence supporting the jury finding was the action of the claimant's lawyers in writing the Industrial Accident Board the day after the claimant learned that his injury was serious, and then gathering information for twenty two more days until they finally filed a final claim.

In Fowler, the court simply said that:

'It appears, therefore, that the process of filing the claim for additional compensation for the injury of March 5, 1936, really extended over a period of some twenty two days....