Petroleum Casualty Co. v. Dean

• Court: Texas Supreme Court
• Writing for the Court: Hickman
• Citation: Petroleum Casualty Co. v. Dean, 122 S.W.2d 1053, 132 Tex. 320 (Tex. 1939)
• Decision Date: 04 January 1939
• Docket Number: No. 2165-7094.,2165-7094.
• Parties: PETROLEUM CASUALTY CO. v. DEAN.

122 S.W.2d 1053

PETROLEUM CASUALTY CO. v. DEAN.

No. 2165-7094.

Commission of Appeals of Texas, Section A.

January 4, 1939.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit under the Workmen's Compensation Act by the Petroleum Casualty Company, insurer, to set aside an award of the Industrial Accident Board in favor of Jim Dean, an employee of the Humble Oil & Refining Company. Judgment for defendant was affirmed by the Court of Civil Appeals, 92 S.W.2d 1140, and plaintiff brings error.

Judgments of the Court of Civil Appeals and of the District Court reversed, and judgment rendered against defendant in error.

Stone & Wells, of Henderson, Powell, Wirtz, Rauhut & Gideon, of Austin, and K. W. Gilmore, of Houston, for plaintiff in error.

W. M. Futch, of Henderson, Roy L. Arterbury, of Houston, and Robertson & Campbell and Charles S. Campbell, all of Jackson, Miss., for defendant in error.

HICKMAN, Commissioner.

This is a compensation case. Humble Oil & Refining Company was the employer, Jim Dean the employee and Petroleum Casualty Company the insurer. Dean recovered judgment in the trial court against the insurer for compensation at the rate of $19.50 per week for a period of 401 weeks and the judgment was affirmed by the Court of Civil Appeals. 92 S.W.2d 1140.

The claim for compensation was not filed with the Industrial Accident Board within the statutory period, and the only question which we shall consider and decide is whether or not the evidence raised an issue of fact as to the existence of good cause for the delay. Our statutes provide in Article 8307, Sec. 4a, that a claim for compensation shall be made within six months from the injury, but provide further that for good cause the board may, in meritorious cases, waive the strict compliance with the requirement.

Dean claims to have suffered an injury by inhaling gas in the course of his employment on November 13, 1931, and filed his claim for compensation with the Industrial Accident Board on October 29, 1932. It thus appears that his claim was filed 11 months and 16 days after the date of the injury.

In considering the facts claimed to raise the issue of good cause for the delay we do so in the light of the following well established rules, concerning which there was formerly some uncertainty in the decisions:

1. The period of six months provided in the statute for the filing of a claim with the Industrial Accident Board begins to run on the date of the injury and not on any subsequent date. Indemnity Ins. Co. of North America v. Williams, 129 Tex. 51, 99 S.W.2d 905; Texas Employers Insurance Association v. Guidry, 128 Tex. 433, 99 S.W.2d 900; Williams v. Safety Casualty Co., Tex.Civ.App., 97 S. W.2d 729. The latter case was reversed on other grounds in 129 Tex. 184, 102 S.W. 2d 178, but the holding by the Court of Civil Appeals on this question was expressly approved.

2. When a claim is not filed within the statutory period of six months the good cause must continue to the date when same is actually filed. Williamson v. Texas Ind. Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Holloway v. Texas Ind. Ins. Co., Tex. Com.App., 40 S.W.2d 75.

3. The claimant is conclusively deemed to have had notice of the fact that his employer had provided workmen's compensation for his protection from the time of the receipt by the Board of notice of that fact. Article 8306, Sec. 3c; Zurich General Accident & Fidelity Ins. Co., Limited, v. Walker, Tex.Com.App., 35 S.W.2d 115. In this case it was shown that Dean at all times had in his possession a "yellow slip" furnished him by his employer advising him that compensation insurance had been provided, and that Petroleum Casualty Company was the insurance carrier, giving its address.

The evidence on the question of good cause, hereinafter set out, is taken from the testimony of the claimant and his attorney and we consider it in the light most favorable to his case. According to his testimony he inhaled some gas on November 13, 1931, while working for the Humble Oil & Refining Company in Texas. He was placed under the care of his employer's physicians and remained in Texas under their care until February 9, 1932, approximately three months. On the last named date he returned to his former home in Mississippi. Thereafter he consulted a physician of his own selection in Mississippi and was advised by such physician on April 10 or 11, 1932, that his condition was the result of his having been gassed. According to his testimony the Texas physicians provided by his employer led him to believe that his condition was the result of some cause not connected with his employment, but when he was advised on April 10 or 11 by his own physician that his condition was the result of his having been gassed, that confirmed him in the view which he had theretofore entertained and led him to the definite conclusion that his incapacity resulted from being gassed. It is earnestly insisted that there was no evidence supporting the conclusion that he was misled by the Texas physicians, but we give Dean the benefit of any doubt on that question and dispose of the case on the theory that good cause existed until April 11, 1932.

Dean employed an attorney in Jackson, Mississippi, in March, 1932. It appears that he was the holder of some character of insurance policy issued by Aetna Life Insurance Company. The attorney pressed that claim until it was paid in July, 1932. It also appears that the employer had provided certain benefits for its injured...