Petroleum Casualty Co. v. Garrison
| Decision Date | 19 July 1943 |
| Docket Number | No. 4153.,4153. |
| Citation | 174 S.W.2d 74 |
| Parties | PETROLEUM CASUALTY CO. v. GARRISON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Orange County; F. P. Adams.
Suit under the Workmen's Compensation Act by Hugh Garrison to set aside an award of the Industrial Accident Board in favor of Petroleum Casualty Company. From a judgment granting relief, defendant appeals by writ of error, and plaintiff moves to dismiss the appeal.
Motion overruled. Judgment reversed and cause remanded for new trial.
K. W. Gilmore, of Houston, for appellant.
W. P. Sexton and J. T. Adams, both of Orange, for appellee.
This is a workman's compensation case. The appeal is by writ of error. Appellee, Hugh Garrison, on a trial to the court without a jury recovered judgment against appellant for $8,020, payable in a lump sum as compensation for 401 weeks of total, permanent incapacity at the maximum rate of $20 per week.
Appellee has filed a motion to dismiss the appeal on several grounds. It is contended that appellant participated in the trial of the case and therefore is denied the right of appeal by writ of error. Vernon's Ann.Civ.St. Art. 2249a. The appellant was duly cited and filed answer in the case. However, it was not represented at the trial and its counsel did not participate. This is affirmatively shown by recitals in the judgment. It has been definitely held by our Supreme Court that Art. 2249a operates only to cut off the right of appeal by writ of error of those who actually participate, in person or by attorney, in the trial and that "it was not intended to cut off the right of those who discover that a judgment has been rendered against them * * * and who participate only to the extent of seeking a new trial." Lawyers Lloyds v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097. We think the mere filing of answer by a defendant does not, of itself, constitute participation in the actual trial any more than filing motion for new trial after judgment. The reasoning of Chief Justice Alexander in the Webb case fully supports this view.
It is further shown that when appellant discovered that a judgment had been entered against it in the case it first filed a petition in the form of bill of review to set the judgment aside but subsequently dismissed that proceeding and brought the case up by writ of error. The filing of the bill of review did not preclude appellant's right to pursue its remedy of appeal by writ of error. Smith v. Rogers, Tex.Civ. App., 129 S.W.2d 776.
Appellee also contends that the supersedeas bond is fatally defective and that the appeal should be dismissed for that reason. Suffice it to say that the bond appears to be in substantial compliance with the Rules. Moreover, if it were defective the result would not be a dismissal of the appeal since any defect "of substance or form" could be cured by amendment. Rule 430, Texas Rules of Civil Procedure. The motion to dismiss the appeal is overruled.
This brings us to a consideration of the case on its merits. We think appellant's assignment that appellee did not sufficiently establish good cause for failing to file his claim within six months after his injury must be sustained. Attorneys for appellee argue that the findings of the trial court on the issue of good cause are supported by the evidence. They say that he did not suffer incapacity immediately after his injury; that his incapacity resulted from a gradual development, and that he filed his claim as soon as he knew that he had suffered permanent incapacity. Also that he relied on the company's doctors' advice that he was not seriously injured. Unfortunately appellee's evidence does not support this proposition. Without discussing the evidence at length, suffice it to say that he was injured August 12, 1941, by a clutch pedal on the drilling rig he was operating kicking up which wrenched his leg and back and caused him considerable pain. We think the testimony will support the inferences that he did not suffer any immediate incapacity. His pain continued however, and in September, 1941, his foreman sent him to the company's doctor in Houston, who told him he was suffering from rheumatism and advised him to have his teeth extracted, which was done. He continued to...
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