Roland v. Employers' Casualty Co.

• Decision Date: 27 November 1926
• Docket Number: (No. 11648.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 290 S.W. 895
• Parties: ROLAND et al. v. EMPLOYERS' CASUALTY CO.
• Court: Texas Court of Appeals

290 S.W. 895

ROLAND et al. v. EMPLOYERS' CASUALTY CO.

(No. 11648.)^*

Court of Civil Appeals of Texas. Fort Worth.

November 27, 1926.

Rehearing Denied January 8, 1927.

Appeal from District Court, Montague County; Vincent Stine, Judge.

Action by Mrs. F. B. Roland and others against the Employers' Casualty Company. From a judgment for defendant, plaintiffs appeal. Reversed and rendered.

Donald & Donald, of Bowie, for appellants.

Lawther, Pope, Leachman & Lawther, of Dallas, for appellee.

BUCK, J.

This is an appeal from a judgment of the district court of Montague county, denying a recovery sought by Mrs. F. B. Roland and her minor daughter against the Employers' Casualty Company. The plaintiffs sued for the death of B. C. Roland, the husband and father, respectively, of the plaintiffs, alleged to have occurred during the course of his employment with the Mascho Corporation, a private corporation engaged in drilling operations in Montague county. It was alleged that said Roland, while at work, on or about August 7, 1924, assisting the driller, as the evidence shows, sustained an injury while attempting to lift some object, shown to have been joints of pipe weighing about 450 pounds, and that from such strain caused a rupture of his appendix, and that by reason thereof complications arose, and an operation was found to be necessary and peritonitis set in, which caused the death of said B. C. Roland. It was alleged that said Roland was earning, at the time of his death, and his services were reasonably worth $10 a day, and he had been receiving such compensation for more than one year prior to his death; that the plaintiffs had submitted their claim to the Industrial Accident Board at Austin, Tex., which said board, on February 9, 1925, rendered its judgment refusing to allow said claim; that within 20 days after the rendition of the judgment plaintiffs served notice on the Industrial Accident Board, Mascho Corporation, and Employers' Casualty Company, by registered mail, to the effect that they were not willing and did not consent to abide by said ruling and decision of the Industrial Accident Board, and within 20 days from the service of said notice on said parties aforesaid, said plaintiffs filed this suit in the district court of Montague county to have said finding and decision of the Industrial Accident Board set aside and held for naught.

There was no allegation, in plaintiffs' petition filed March 10, 1925, that the employer, the Mascho Corporation, or its president, James A. Mascho, or the Industrial Accident Board, or the Employers' Casualty Company, the insurer, had been given notice of the injury to said B. C. Roland. Nor was there any allegation that notice had been given to either of them within six months after the time of the accident. The only allegation in their original petition that might possibly be claimed as an allegation of notice is that the plaintiffs had submitted their claim to the Industrial Accident Board, and that said board had rendered a judgment refusing to allow said claim. Then follows the allegations that notice was served on these several parties that the plaintiffs were dissatisfied with the judgment and decision of the Industrial Accident Board and did not consent to abide thereby.

Plaintiffs further alleged in their original petition that they incurred $230 hospital fees, surgeons' fees, etc., and prayed further for the recovery of $20 per week for a period of 410 weeks. On October 20, 1925, plaintiffs filed a trial amendment, in which they alleged that, pursuant to the injury sustained by B. C. Roland, it was necessary that medical attention be afforded to him, and with full knowledge thereof to the president of the Mascho Corporation, J. A. Mascho, he was treated by Dr. F. M. Patton and Dr. J. D. Wilson, of Bowie, Tex., and thereafter at the Wright Sanitarium, Bowie, Tex., and that an operation was performed with full knowledge unto the said employer; that pursuant to such operation his death resulted thereafter; that it was impossible to communicate with said Employers' Casualty Company because, at that time, the identity of the insurance company was not known to plaintiffs.

The cause was submitted to a jury upon special issues, to wit:

"(1) Did B. C. Roland receive an injury while in the course of his employment at the well, on or about the 7th day of August, 1924? A. Yes.

"(2) If you have answered the foregoing issue `No,' then you need not answer this, but if you have answered the same `Yes,' then was said injury the direct and proximate cause of the death of the said B. C. Roland? A. Yes.

"(3) If you have answered either of the foregoing issues `No,' then you need not answer this, but if you have answered both of the foregoing issues `Yes,' then would a failure of the defendant, Employers' Casualty Company, to make a lump sum settlement with the plaintiff of the compensation due them, if any is due them, on account of said injury, if any, work manifest hardship and injustice to the plaintiffs? A. Yes.

"No. A. Did the Employers' Casualty Company have a policy of insurance in force during the month of August, 1924, covering injuries to employees of the Mascho Corporation under the Texas Workmen's Compensation Act? A. Yes.

"No. B. Did the Employers' Casualty Company or the Mascho Corporation receive or have notice of such injury, if any, within 30 days after the 7th day of August, 1924? A. Yes."

On August 22, 1925, the plaintiffs tendered a pleading styled, "Plaintiffs' Trial Amendment," in which they alleged as follows:

"Plaintiffs would further allege that James A. Mascho, president of the Mascho Corporation, knew that B. C. Roland was in the condition suffering from peritonitis resulting from a ruptured or perforated appendix, from which condition he died, on August 13, 1924, and that she, as his wife, relied upon such fact that he knew of such condition and depended upon his giving any due notice necessary to the Employers' Casualty Company, and that subsequent thereto, when she first learned of her rights in the premises, gave the notice unto the Employers' Casualty Company and the Industrial Accident Board, Austin, Tex., concerning the injury and death of the said B. C. Roland, deceased, and that such notice was given at a time when she first knew of her rights in the premises, all of which was done within six months from the date of death of said B. C. Roland, which occurred on August 13, 1924.

"Wherefore plaintiffs pray that such trial amendment be in all things considered, and that she have judgment, as in her original petition prayed for herein, for all of which she respectfully prays."

The trial court refused permission to file this pleading and gave the following reasons:

"This motion to file this trial amendment was made just before the conclusion of all the evidence. There was nothing in the evidence apparent to the court which might have operated as a surprise to plaintiffs as to the matters this relates to. The said James A. Mascho testified two days before this, and, being a nonresident of the county, was excused by mutual agreement of counsel on the understanding that neither party should offer testimony as to statements to or by the said Mascho that might make it necessary for the other party to need said Mascho as a witness to rebut same."

Plaintiffs and defendant each filed a motion for judgment, and the trial court entered a judgment for defendant. The plaintiffs have appealed.

This judgment contains the following recitation:

"And the court having considered said verdict, is of the opinion, and so finds it to be a fact that special issue No. B should not have been submitted to the jury, because there is no pleading or evidence in the record to sustain the submission of such an issue to the jury or the answer of the jury to such issue, and that the same therefore should be and is treated as a nullity."

It is evident that the trial court thought that the failure of plaintiffs to allege that the Employers' Casualty Company or the Mascho Corporation had notice of the injury to B. C. Roland within 30 days after the alleged accident or injury made the pleadings insufficient as against a general demurrer.

Article 8307, § 4a, Vernon's Ann. Tex. Statutes 1925, provides:

"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 months after the occurrence of same; or, in case of death of the employé 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 the claim before the board."

It is the contention of appellants that the part of the statute quoted, to wit, no recovery is allowable unless the association or subscriber have notice of the injury within 30 days after such injury, and unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same, evidently refers to and is limited to an injury not resulting in death. That the part of section 4a which reads "or, in case of death of the employé or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity," means that, where death ensues or the person becomes physically or mentally incapacitated, if notice is given within six months, it is sufficient. We believe this construction of the statute is correct, and that the evident intention of the Legislature was to allow six months for notice of the injury in case...