Royal Indemnity Co. v. Earles

• Decision Date: 10 January 1946
• Docket Number: No. 11429.,11429.
• Citation: 153 F.2d 933
• Parties: ROYAL INDEMNITY CO. v. EARLES.
• Court: U.S. Court of Appeals — Fifth Circuit

153 F.2d 933 (1945)

ROYAL INDEMNITY CO. v. EARLES.

No. 11429.

Circuit Court of Appeals, Fifth Circuit.

December 18, 1945.

Rehearing Denied January 10, 1946.

Adair Rembert, of Dallas, Tex., for appellant.

A. B. Culbertson and Cecil A. Morgan, both of Fort Worth, Tex., for appellee.

Before HUTCHESON, WALLER, and LEE, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit for compensation for injuries resulting from an accidental strain in the course of plaintiff's employment, was tried to the court without a jury, and elaborate findings of fact were filed. Summed up they were: that plaintiff, as a result of an accident occurring on April 22, 1943, suffered a general compensable injury; that on December 1, 1943, he filed his claim with the Industrial Accident Board, admittedly not within six months; but that his case was a meritorious one, and he alleged and proved continuing good cause for not filing earlier. Concluding that on these facts and under the schedule as provided by the Workmen's Compensation Law, based upon the agreed earnings of plaintiff, he was entitled to recover $2,858, the District Judge gave him judgment for that amount.

Appealing from that judgment, defendant is attacking, as without support in the evidence and therefore clearly erroneous, the fact findings, (1) that there was a compensable injury, and (2) that there was good cause for not filing until December 1. In support of its first attack, appellant relies on the testimony of its physician witness, that the injury appellee claims to have suffered could not have resulted from the claimed accident and does not in fact exist; and further, that if he is suffering from the injury he claims, it could not and did not incapacitate him from working. Appellant's summary of the evidence and its attack upon the findings do make out a strong case in support of its theory that no injury was sustained. But they do not overthrow the findings because the evidence they rely on is not all of the evidence. Plaintiff offered the evidence of a physician whose testimony supports his claim.

The District Judge heard and saw all of the witnesses, including plaintiff. He gave credence not to defendant's doctors and their theory, but to plaintiff and the theory of his witness, and we cannot, as appellant urges us to do, say that this testimony was so incredible as to require rejection. In these circumstances, to substitute our judgment for that of the District Judge would be to usurp his province, to take upon ourselves a fact finding function entrusted not to us but to the trial judge.

On the issue of good cause, appellant stands no better. The phrase "good cause" appearing in the last clause of Sec. 4a of Art. 8307,¹ fixing a time for notice and for filing, is not therein defined. Neither, though the phrase had been used in other connections and as used had been construed,² was there then existing any body of decision with respect to its meaning as used in workmen's compensation statutes to which litigants or courts could resort.³ Because this was so, in deciding the multitude of "good cause" cases which have arisen under the Act, the Texas courts, in stating the meaning and effect of the clause and giving the phrase application to varying states of fact, were in a real sense pioneering. With so many "good cause" cases pressed, so much judicial pioneering to be done, and so many judicial pioneers working at it, it is not strange that many confused and confusing trails were marked and much back tracking was done in the wilderness before the "good cause" road became the broad highway it now seems to be. At least if the judicial pioneers were not consciously confused, their legal fellow travelers were. Sometimes it was by what was not, sometimes it was by what was, said in the opinions. Perhaps, though, the real source of the confusion was that lawyers are of more common clay and cast in lesser molds than the judges. Having experienced that mysterious metempsychosis which occurs when, sloughing off the soul of the lawyer, they rise on stepping stones of their dead selves to higher things, judges are no longer, as lawyers are, slaves to words but their masters, able in using them to make them mean what they choose them to mean, neither more nor less. Authorized to fulminate, and thus emancipated from the stern necessity of persuading and convincing under which lawyers labor, they forget that lawyers are not so masterful and discerning as judges are, and, forgetting, fail to clearly and fully set forth in the opinion the real facts which produced the decision. Matters standing thus, in the unending struggle between lawyers for the insurance carriers to have "good cause" determined as a question of law, and those of the compensation claimants to have it determined as a question of fact,⁴ judicial trails have crossed and recrossed, at times heresy has seemed doctrine, doctrine heresy.

Though under the peculiar wording of the statute, "For good cause the board may * * * waive", the view that the waiver was a matter of discretion,⁵ reviewable only for abuse, would have been quite reasonable, the Texas courts did not take that view. From the beginning they prescribed a standard for determining the existence of good cause to which the triers of fact, whether board or court, must conform. This standard, as early set out in Consolidated Underwriters v. Seale, Tex.Civ.App., 237 S.W. 642, 644, is: "Construing liberally the expression `for good cause,' we think all that is required of an injured employé is that he prosecute his claim for compensation with that degree of diligence that an ordinary man, situated as he was, would have exercised, under the same or similar circumstances."

There, both board and jury having found good cause, the court said:

"We think the facts of this record raise that issue, and that it was properly submitted to the jury. * * *

"These facts were reviewed by the board, and by making an award in favor of appellee they necessarily found that good cause was shown * * *. On a trial to a jury the issue was again found in appellee's favor. After carefully reviewing the facts, we are unwilling to say that the issue of good cause was not raised."

This standard has never been departed from.⁶ But once set up, claimants and carriers formed their lines around it, and each case became a battle ground on which, as to "good cause", the old and familiar issue of law and fact was fought out. In each case the issue drawn was whether the facts put forward⁷ to show good cause for not filing made an issue of fact as to whether plaintiff had conformed to the standard set or whether the evidence showed, as matter of law, that he had or had not conformed. In short, the issue was drawn as to whether, following rules of right reason in the particular case, reasonable minds could draw only one conclusion as to the presence or absence of "good cause" and an instructed verdict was therefore demanded, or could draw more than one conclusion, and there was an issue of fact for the jury.

At first there was some confusion as to whether the matter was for the Board alone,⁸ but this was no more than a temporary confusion. It was soon settled by authoritative decision that the trial de novo provided for by law brings all matters, including good cause, before the court for trial.⁹ But differences of opinion as to law and fact were not the only source of confusion in the growth and progress of the law of good cause. One, and perhaps the most prolific source was the difference of opinion which for a time existed as to whether the six months within which to file ran from the date of the accident or from the date when incapacity had resulted, and plaintiff knew that the accident was its cause. This confusion was a very serious one, for while it prevailed many a too late filing was sustained, and under the influence of such decisions as Texas Employers' Ins. Ass'n v. Fricker, Tex.Civ.App., 16 S.W.2d 391; Texas Employers' Assoc. v. Wonderley, Tex.Civ.App., 16 S.W.2d 386, 389; and Texas Employers Ins. Ass'n v. Guidry, Tex. Civ.App., 93 S.W.2d 508; claimants, lulled into the belief that they had six months in which to file after their incapacity had so developed, that they could relate it to the accidental cause, were rudely shocked to discover that the law was quite the contrary, and that they must have good cause continuing until the date of filing.¹⁰

It was the existence of this aberration in the Texas cases, which produced our straddle in McKay's case, Fidelity & Casualty Co. of New York v. McKay, 5 Cir., 73 F.2d 828, 829, where, citing Texas cases, we said:

"The Texas courts have held that the occurrence of the injury does not mean the occurrence of the accident which results in injury, but refers to the development of the result, to the point that a state of facts exists which makes compensation due. * * * The claim was filed within six months from that time.

"But if it should have been made within six months from Jan. 1. * * * The Board entertained it, finding that good cause existed for the delay up to the time of filing, and the jury did the same. Good faith and reasonable diligence under the circumstances are enough."

It was the coming to an end of this period of aberration which produced, and in this court was signalized by, our opinion in Indemnity Insurance Co. v. McManus, 5 Cir., 88 F.2d 924, 925, on which appellant mistakenly and vainly relies. Appellant reads the opinion as though it held as matter of law that a delay of 22 days in filing claim for an injury after its disabling consequences were known, defeated the claim of good cause. So reading it, appellant insists that the longer delay here from November 5th, when plaintiff's counsel wrote to the adjuster, to December 1st, when he filed claim, is necessarily fatal to the claim that good cause existed up to the time of filing. It is true that the opinion, after referring to the delay from May 2d, to May...