Petroleum Casualty Co. v. Dean

• Court: Texas Court of Appeals
• Writing for the Court: Johnson
• Citation: Petroleum Casualty Co. v. Dean, 92 S.W.2d 1140 (Tex. App. 1936)
• Decision Date: 04 March 1936
• Docket Number: No. 4823.,4823.
• Parties: PETROLEUM CASUALTY CO. v. DEAN.

Page 1140

92 S.W.2d 1140

PETROLEUM CASUALTY CO. v. DEAN.

No. 4823.

Court of Civil Appeals of Texas. Texarkana.

March 4, 1936.

Rehearing Denied March 12, 1936.

Appeal from District Court, Rusk County; R. T. Brown, Judge.

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. From an adverse judgment plaintiff appeals.

Affirmed.

K. W. Gilmore, of Houston and Stone & Wells, of Henderson, for appellant.

Roy L. Arterbury, of Houston, Robertson & Campbell, of Jackson, Miss., and W. M. Futch, of Henderson, for appellee.

JOHNSON, Chief Justice.

The Industrial Accident Board awarded appellee, Jim Dean, compensation for injuries claimed to have been sustained November 13, 1931, as the result of being "gassed" with poisonous gas while opening a valve on a gas line, in the course of his employment with Humble Oil & Refining Company, a subscriber carrying workmen's compensation insurance with appellant, Petroleum Casualty Company. Appellant appealed from the award of the Industrial Accident Board and filed suit in the district court of Rusk county, where the injury occurred, to set aside the award and to be relieved of liability.

Appellee answered and filed his cross-action seeking compensation for total and permanent disability.

The case was tried to a jury. In answer to special issues submitted the jury found: "That cross plaintiff, Jim Dean, was totally and permanently incapacitated as the result of an injury, sustained November 13, 1931, by the inhalation of gas, received in the course of his employment by the Humble Oil & Refining Company, of which the Humble Oil & Refining Company had notice within 30 days from the date of the injury, and that cross-plaintiff, Jim Dean, had shown good cause for not having filed his claim with the Industrial Accident Board prior to October 29, 1932, the date on which it was filed; and that failure of appellant to discharge its liability in a lump sum would not work manifest hardship and injustice to Jim Dean. And that the disability suffered by Jim Dean was not the result of any cause, or causes, other than being gassed."

Upon the findings of the jury and other facts in evidence uncontradicted, judgment was entered awarding Jim Dean compensation at the rate of $19.50 per week for 401 weeks. The Petroleum Casualty Company has appealed.

Appellant's first four propositions aver that the trial court erred in overruling its motion for an instructed verdict, because, it is contended, appellee failed both in pleadings and in evidence to show "good cause" for not having filed his claim with the Industrial Accident Board prior to October 29, 1932. The propositions are based upon section 4a of article 8307, R. S., reading: "Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the association or subscriber within thirty days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of same; or, in case of death of the employee or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the board."

Appellee was gassed November 13, 1931. His claim for compensation was not filed with the Industrial Accident Board until October 29, 1932, eleven months and sixteen days after the date of his injury. The burden was upon appellee to plead and to prove that good cause continued to exist during that period of time for not having filed his claim prior to October 29, 1932. Ocean Accident & Guarantee Corporation v. Pruitt (Tex. Com.App.) 58 S.W.(2d) 41; Holloway v. Texas Indemnity Ins. Co. (Tex.Com.App.) 40 S.W.(2d) 75. Good cause is not limited by any definition in the statute. Ordinarily, it is a question of fact, the determination of which is committed to the sound discretion of the board in the first instance, and on appeal from its decision in the second instance to the court or jury hearing the facts, and subject to the review as other matters of a like nature by the appellate courts, for want of sufficient pleading or evidence to raise the issue. It is intended that the injured employee shall prosecute his claim with reasonable diligence. Consolidated Underwriters v. Scale (Tex.Civ.App.) 237 S.W. 642.

In presenting the issue of good cause for not having sooner filed his claim with the board, appellee alleged:

"The defendant (appellee) would further show that during the time he was being treated by the physicians employed for such purpose by the Humble Oil and Refining Company, and after being examined by them immediately following his injury and on other occasions subsequent thereto, he was advised that his condition was not the result of inhalation of gas on the occasion in question, but was led to believe by said physicians that his ailment and resulting physical collapse was due to other causes not connected with his employment; that the defendant being an uneducated man and wholly ignorant as to the various causes that might have led to his ailment, relied upon the statements made to him by such company physicians and placed himself entirely in their hands and followed their advice and instructions. Defendant (appellee) would further show that his condition did not improve but steadily grew worse under the treatment of said company physicians, and after it became apparent that he would not recover he left the company's camp, as above alleged, and went to his home in Hillsboro, Mississippi; that thereafter his condition continued to grow worse until finally he was examined by physicians who were well trained and experienced in diagnosing physical ailments, and that such physicians after diagnosing his case and after observing his symptoms and reactions over a period of time, advised him that the diseased and inflammatory condition of his respiratory organs and the impaired condition of his heart and lungs was the result of the inhalation into his lungs of poisonous gas. Defendant would show that the only time he had been subjected to the breathing of poisonous gas was on the occasion in question, as herein alleged.

"Defendant (appellee) alleges the foregoing facts by way of explanation of his delay in filing his claim with the Industrial Accident Board; that had he been advised by the physicians of the Humble Oil & Refining Company who treated him for more than two and one-half months following his injury on the occasion in question, that his condition was the result of the inhalation of gas, he would have earlier filed his claim and prosecuted his rights, but that when he learned finally that his condition was caused by the inhalation of gas, he took steps to have his rights protected under the law and thereafter diligently pursued his rights afforded him by the Workmen's Compensation Law of this State [Vernon's Ann. Civ.St. art. 8306 et seq.] and has...