Odom v. Indemnity Ins. Co. of North America

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Odom v. Indemnity Ins. Co. of North America, 111 S.W.2d 1143 (Tex. App. 1937)
• Decision Date: 17 December 1937
• Docket Number: No. 1730.,1730.
• Petition History: writ dism'd
• Parties: ODOM v. INDEMNITY INS. CO. OF NORTH AMERICA.

111 S.W.2d 1143

ODOM v. INDEMNITY INS. CO. OF NORTH AMERICA.

No. 1730.

Court of Civil Appeals of Texas. Eastland.

December 17, 1937.

Rehearing Denied January 14, 1938.

Appeal from District Court, Nolan County; A. S. Mauzey, Judge.

Suit under the Workmen's Compensation Act by Charles K. Odom to set aside an award of the Industrial Accident Board in favor of the Indemnity Insurance Company of North America. From a judgment denying relief, the plaintiff appeals.

Affirmed.

Kirby, King & Overshiner, of Abilene, for appellant.

Jas. H. Beall, Jr., of Sweetwater, and Barnes & Barnes, of Beaumont, for appellee.

LESLIE, Chief Justice.

This is presented as a case coming under the Workmen's Compensation Law of Texas, Vernon's Ann.Civ.St. art. 8306 et seq. Charles K. Odom instituted this suit against the Indemnity Insurance Company of North America, insurer of Gulf Refining Company (employer), to recover compensation by reason of an injury alleged to have been sustained by him in the course of his employment. The board rejected the claim. The trial court sustained the general demurrer and several special exceptions to the plaintiff's petition, and he appeals. The parties will be referred to as in the trial court.

The ruling of the court on the special exceptions becomes immaterial under the circumstances. The judgment will be tested by the ruling on the general demurrer. Reasoner v. Gulf, C. & S. F. Ry. Co., 109 Tex. 204, 203 S.W. 592; Fleming v. Stringer, Tex.Civ.App., 225 S.W. 801; De Everett v. Henry, 67 Tex. 402, 405, 3 S.W. 566; 3 Tex.Jur. 1021.

Of course, it is the plaintiff's contention that the petition states a cause of action for a compensable injury. We, therefore, pass to a consideration of the assignment complaining that the court erred in sustaining the general demurrer. The defendant (insurance carrier) advances several propositions in justification of the court's ruling. The petition is lengthy, and only such parts will be set forth or referred to as are necessary to reflect the reasons for this court's conclusions. Suffice it to say that we have carefully examined the allegations of the petition, indulging in favor of it all reasonable intendments, and we conclude that the trial court did not err in sustaining the general demurrer and dismissing the plaintiff's suit upon his failure to amend.

The plaintiff alleges that as an employee of the Gulf Refining Company it was his duty to watch the gauge and control the vapor pressure from the still to the condenser. That ordinarily there was an automatic control manipulated from the ground and that when the same did not work for any reason it was his duty to ascend to a "steel walk" or "top deck" of the oil refinery and control the same by "hand valve." In the performance of such duties he alleges that he "accidentally inhaled hydrogen sulphide and noxious gases on or about December 15, 1929, and at various times thereafter, * * * but same did not injure him at said times so as to disable him from following the duties of his employment and he was not thereby prevented from following the duties of his employment, until on or about March 28, 1936, and he was not injured within the meaning of the term `injury' as used in article 8307, § 4a, until the disease of tuberculosis naturally resulting from the inhalations of said gas, or being aggravated thereby, caused said damage or harm to the physical structure of his body as to disable him from following the duties of his employment, which disability occurred on or about the 28th day of March, 1936, as aforesaid, and within 30 days thereafter, plaintiff gave notice of such injury to his employer by mailing said employer a formal notice of said injury on the 18th day of April, 1936 * * * and within six months thereafter on, to-wit, the 20th day of April, 1936, plaintiff made claim for compensation with respect to said injury by filing said claim with the Industrial Accident Board of Texas * * *."

Other allegations of an alternative nature, referring especially to the above allegations, will be hereinafter set out. If the plaintiff is proceeding upon the theory that the development of incapacity of date March 28, 1936, is his injury, which is evidenced by alleging notice and filing of claim within 30 days and 6 months, respectively, from March 28, 1936, then clearly there can be no recovery on such facts standing alone, since the incapacity appears to be the result of injuries received more than six years prior to March 28, 1936. Williams v. Safety Cas. Co., Tex.Sup., 102 S.W.2d 178; Texas Emp. Ins. Ass'n v. Guidry, Tex.Com.App., 99 S.W.2d 900; Jones v. Texas Emp. Ins. Ass'n, Tex.Com.App., 99 S.W.2d 903; Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Texas Indemnity Ins. Co. v. Barker, Tex.Civ.App., 82 S.W.2d 389. By these authorities it is settled that the development of incapacity is not necessarily the date of the injury, and in this particular case the pleading shows that it is not the date.

Further, if the alleged good cause, presently to be discussed, for not giving notice in thirty days and filing claim in six months is based upon the date of injury, as alleged, namely, March 28, 1936, then such allegations of good cause would appear to be meaningless. As we read the pleading, the notice and claim purport to have been actually given and filed, respectively, within thirty days from March 28, 1936. Notwithstanding these allegations pertaining to good cause seem to be specifically predicated upon March 28, as the date of injury, it may be that by a most liberal construction they may be interpreted as undertaking to state good cause for not giving the notice and filing the claim (1) within thirty days and six months, respectively, after December 15, 1929 (if any injury on that date), or (2) good cause for not giving notice and filing claim prior to the time (April 20, 1936) such claim was filed; the right to give notice and file claim on the last-mentioned date (good cause existing) being alone effective to preserve plaintiff's cause of action in any event.

Although continuing his work for the employer right along until March 28, 1936, plaintiff alleges that on March 24, 1936, after being assigned to heavier duties, he consulted doctors who informed him that he had tuberculosis and that it was due to the inhalations of gas as herein set out. That March 24th was the first time that he ever knew, or had reason to believe, that he had tuberculosis, and that it was due to the inhalations of gas occurring at irregular intervals from December 15, 1929, until the fall of 1931. With such information he alleges that he worked on in the same capacity until March 28, 1936, when he consulted an attorney concerning his claim. That it was necessary for the attorney to have some time to look into the law of the case and talk to witnesses "which said attorney did"; that "within a reasonable time thereafter (after March 28) said attorney advised plaintiff (on a date not alleged) to make claim * * * and thereafter (after date of advice, which was not given) acting on the advice of said attorney, plaintiff on April 20, 1936, made and filed * * * claim." That he had always considered the injuries trivial. That such facts show good cause for not filing his claim for injury "within six months after he received same * * *."

Obviously these allegations negative the obtaining of continuous good cause at all times up to the date of April 20, 1936, when the claim was actually filed. In these allegations he fails to allege the facts which, if admitted to be true, would constitute good cause obtaining from December 15, 1929, up to and including April 20, 1936, and the trial court properly sustained the demurrer. Good cause for the first six months delay following the accident is not sufficient under the circumstances. Holloway v. Texas Ind. Ins. Co., Tex.Com.App., 40 S.W.2d 75; Williamson v. Texas Ind. Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; New Amsterdam Cas. Co. v. Scott, Tex.Civ.App., 54 S.W.2d 175; Texas Ind. Ins. Co. v. Barker, Tex.Civ. App., 82 S.W.2d 389; 45 Tex.Jur. p. 742. Further, any fair analysis of said allegations disclose that there is a break in the plaintiff's continuous good cause. None is alleged for the days intervening from March 24, 1936 (when he learned of the tuberculosis), until March 28 (development of incapacity). In fact, he performed his usual employment during those days. The attorney's advice might have been given March 29, 1936, the 30th, or 31st of that month, or any other ensuing day prior to April 20. In such case there would be no good cause alleged for the time intervening between the date of receiving the attorney's advice and the filing of the claim. This would amount to a failure to show continued good cause to date of filing claim. This would be fatal to his right of recovery. Indemnity Ins. Co. of North America v. McManus, 5 Cir., 88 F. 2d 924; New Amsterdam Cas. Co. v....