New Amsterdam Casualty Co. v. Scott

• Court: Texas Court of Appeals
• Writing for the Court: Hickman
• Citation: New Amsterdam Casualty Co. v. Scott, 54 S.W.2d 175 (Tex. App. 1932)
• Decision Date: 04 November 1932
• Docket Number: No. 1015.,1015.
• Parties: NEW AMSTERDAM CASUALTY CO. v. SCOTT.

Page 175

54 S.W.2d 175

NEW AMSTERDAM CASUALTY CO. v. SCOTT.

No. 1015.

Court of Civil Appeals of Texas. Eastland.

November 4, 1932.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Suit by C. C. Scott against the New Amsterdam Casualty Company to set aside an award of the Industrial Accident Board. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Touchstone, Wight, Gormley & Price and Robert B. Holland, all of Dallas, for appellant.

Grisham, Patterson & Grisham, of Eastland, for appellee.

HICKMAN, C. J.

This suit arose under the Workmen's Compensation Law (Vernon's Ann. Civ. St. art. 8306 et seq.), and was filed by appellee in the court below to set aside an award of the Industrial Accident Board. Due notice of his intention not to abide by the award was given by appellee, and the suit was filed in the district court of the county where the injury occurred within the statutory time. Appellee alleged that, on June 16, 1928, while he was in the course of his employment as an employee of Arab Gasoline Corporation, a bolt dropped from a pulley about twelve feet above him, struck him on the back of his head, inflicting a wound sufficient to break the skin; that he was temporarily stunned by the blow, but within fifteen minutes returned to his work and continued from day to day to perform his work until on or about the 10th day of April, 1930; that during all of that period he experienced some pain and discomfort from the injury, and daily applied medicine prescribed by a physician to the injured part; that the wound refused to heal, and on or about March 1, 1930, he began to have fever each day and continued to do so as a result of said injury until on or about the 11th day of April, 1930, when he was forced and compelled to quit work, and was thereafter sent to a specialist in Dallas for an examination. On the 22d day of April, 1930, he was advised by the specialist that a cancer had developed on his head, "and plaintiff says that said cancer is incurable, and that, as a result of same, and as a direct and proximate result of the injury which he received in the course of his employment and in line of duty on the afternoon of June 16th, 1928, this plaintiff is totally and permanently disabled and incapacitated to do and perform labor, and that he has been totally and permanently incapacitated at all times subsequent to and inclusive of the 11th day of April, 1930."

The case was submitted to a jury on special issues, and, upon the answers to such issues, judgment was rendered in favor of appellee against appellant for $6,439.19 in a lump sum for total permanent incapacity.

Special issue No. 5 of the court's charge was as follows: "Do you find, from a preponderance of the evidence, that the plaintiff had good cause for his failure, if any, to file claim for compensation with the Industrial Accident Board within six months after his injury, if any?" To which the jury answered "Yes."

To this issue, as submitted, the appellant timely presented, among others, the following objection and exception: "Defendant objects and excepts to special issue No. 5 and the submission thereof to the jury, for the reason that the said issue fails to confine the jury in its answer thereto, to consideration of those things pleaded by the plaintiff as good cause for his failure to file claim for compensation within six months after the date of his injury, if any."

The claim was filed with the Industrial Accident Board on October 13, 1930, more than two years after the accident. The good cause pleaded by appellee for not sooner filing his claim was, in substance, that he did not believe that said injury would result in his incapacity in any degree until in April, 1930. Upon the trial he was permitted by the court, over the objection of appellant, to testify as to other matters of good cause, consisting of his belief, based upon statements made to him by his employer's superintendent, that he had written, or would write, the board about it, and because of such representations, and relying upon the superintendent to do so, the appellee did not file any claim. Clearly the issue, as submitted, did not confine the jury, in its answer thereto, to a consideration of the facts pleaded by appellee as showing good cause for his failure to file a claim within six months, and the good cause found by the jury may have been one not pleaded at all. In this condition of the record it was error not to limit the jury in its...