Texas Employers' Ins. Ass'n v. McGrady

• Decision Date: 09 June 1927
• Docket Number: (No. 3394.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 296 S.W. 920
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. McGRADY et al.
• Court: Texas Court of Appeals

296 S.W. 920

TEXAS EMPLOYERS' INS. ASS'N v. McGRADY et al.

(No. 3394.)^*

Court of Civil Appeals of Texas. Texarkana.

June 9, 1927.

Rehearing Denied June 27, 1927.

Appeal from District Court, Anderson County; Ben F. Dent, Judge.

Suit by the Texas Employers' Insurance Association to set aside an award of compensation by the Industrial Accident Board in favor of Mrs. Tommie L. McGrady and others, for the death of L. E. McGrady from injuries sustained while in the employ of A. M. Burns. From a judgment sustaining the award, plaintiff appeals. Reversed and remanded.

John R. Gray, of Dallas, N. B. Morris, Jr., of Palestine, and Morris, Sewell & Morris, of Houston, for appellant.

J. D. Pickett, of Palestine, for appellees.

HODGES, J.

The appellant filed this suit to set aside an award made by the Industrial Accident Board in favor of the appellees. The appeal is from a judgment sustaining the award. The claim involved is for an allowance of compensation to the wife and children of L. E. McGrady, who died on December 4, 1923. It is alleged that his death resulted from injuries sustained on January 2, 1923, while employed in the service of A. M. Burns, who held a policy of insurance issued by the appellant.

Burns was a plumber, and had a contract to do the plumbing for a hotel in the city of Palestine. On the date of the alleged injury, McGrady was in the service of Burns and engaged with pick and shovel in digging a ditch in which some pipes were to be laid. On the morning of January 2, Smith, another employee of Burns, was sent to direct McGrady to report to the office of his employer for the purpose of being transferred to another job. Upon the failure of McGrady to promptly respond, Smith returned to repeat the order. He found McGrady in the hotel building, leaning against a pilaster, apparently in great pain and unable to speak above a whisper. In reply to Smith's inquiry, McGrady stated that he had been struck on the lower part of his back by a piece of timber which fell from an upper floor of the hotel. McGrady was carried to his home, and a physician was called to attend him. An examination disclosed a bruised place on his back, near the lower end of the spine. He remained in bed a few weeks, and then resumed work for Burns, but was given only light work on account of his inability to perform heavy manual labor. It was discovered that immediately following the alleged injury McGrady had a slight impediment in his speech. He also showed other symptoms of having sustained a partial stroke of paralysis. Not long after McGrady resumed work for Burns, the latter, acting for the appellant association, paid McGrady $11.86 as full compensation for his injuries. In May following, McGrady left the service of Burns and went to Port Arthur, where he secured employment as a carpenter; but a few weeks thereafter he suffered another and a more severe stroke of paralysis. He was then sent home, where he remained till his death on December 4, which resulted from a third attack similar to the two preceding. The evidence tends to show that these spells were caused by hemorrhage of the brain — the rupture of a blood vessel.

Neither Mrs. McGrady nor her children knew that Burns carried a policy of insurance with the appellant till in April, 1925, and for that reason no claim for compensation was filed with the Industrial Accident Board till more than a year after the date of the death of McGrady. Upon the presentation of her claim, however, the board made an award allowing appellees compensation in the sum of $14.42 per week for a term of ____ weeks. Within the time prescribed by the statute, the appellant filed this suit with the court below to set aside the award, mainly upon the following grounds: (1) The death of McGrady did not result from any accidental injury sustained while in the service of Burns, and (2) because the claim was filed with the Industrial Accident Board more than six months after the death of McGrady, and there was no good cause shown for the delay.

The following special issues were submitted and answered by the jury:

"1. Did L. E. McGrady receive any injury in the course of his employment on January 2, 1923? Answer: Yes.

"2. Was the injury which the said L. E. McGrady suffered on January 2, 1923, the proximate cause of his death? Answer: Yes.

"3. Did the said L. E. McGrady sustain a hemorrhage of the brain on the 2d day of January, 1923? Answer: Yes.

"4. Did the strain of the employment the said L. E. McGrady was working in contribute to cause said hemorrhage of the brain? Answer: Yes.

"5. Was the hemorrhage of the brain sustained by L. E. McGrady on the 2d day of January, 1923, a proximate cause of his death? Answer: Yes.

"6. Was the death of L. E. McGrady due to the combined effect of the injury received on the 2d day of January, 1923, and the preexisting disease, if any, from which he was then suffering? Answer: Yes."

As explanatory of the first and second questions submitted, the court gave the following instruction:

"By the term `personal injury' is meant damage or harm to the physical structure of the body and such diseases as naturally result therefrom. The term `injuries sustained in the course of employment' means all injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by the employee while engaged in the furtherance of the affairs or business of his employer, whether done upon the employer's premises or elsewhere.

"If L. E. McGrady was afflicted with hardening of the arteries prior to the 2d day of January, 1923, and while engaged in heavy manual labor he suffered a hemorrhage of the brain which proximately caused his death, and which hemorrhage of the brain was due to excessive physical exertion of his labor, or if such physical exertion was a contributing cause of the hemorrhage of the brain, then such injury would be an injury sustained in the course of his employment."

Upon the findings of the jury the court entered a judgment for a lump sum, based upon the amount awarded by the Industrial Accident Board. It was agreed that a lump sum allowance might be made, with proper deductions for the cash payment.

The appellant here renews the contention that the claim for compensation was barred by the statute at the time it was filed with the Industrial Accident Board. Other assignments were presented which will be referred to and considered later.

Article 8307, § 4a, pt. 2, of the Workmen's Compensation Act, required that claims for compensation for injuries resulting in the death of an employee shall be filed by his beneficiaries within six months after such death. It also provides, however, that —

"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 conceded that this claim was filed more than a year after the death of McGrady; but it is insisted by counsel for the appellees that the ignorance of the beneficiaries of the fact that Burns carried the policy of insurance constituted a good cause why the board might waive the limitations prescribed by statute. In combating that proposition appellant refers to the following provisions of the statute: Article 8306, § 3c:

"From and after the time of the receipt by the Industrial Accident Board of notice from any employer that the latter has become a subscriber under this law, all employees of said subscriber than and thereafter employed, shall be conclusively deemed to have notice of the fact that such subscriber has provided with the association for the payment of compensation under this law."

That section does not in terms include the beneficiaries of deceased employees, but the following is relied on as giving it the necessary extension:

"Any reference to any employee herein who has been injured shall, when the employee is dead, also include the legal beneficiaries, as that term is herein used, of such employee to whom compensation may be payable." Article 8309, § 1, pt. 4.

While these two provisions now appear as parts of the same act, they were enacted at different times. Section 3c, quoted above, as added by amendment in 1923, became effective on July 2 of that year, six months after McGrady was injured and some time after he left the service of Burns, his employer. It therefore must be given a somewhat retroactive effect if applied to this case.

But there are other reasons why we think these provisions of the statute should not be construed as charging the appellees with notice that Burns was a subscriber under the terms of the Workmen's Compensation Act. In the first part of that act, that in which section 3c appears, the Legislature was dealing with the relations of master and servant in an effort to alter the rights and liabilities which grow out of contracts of employment. It was undertaking to substitute for the master's common-law liability a different remedy for compensation for injuries to the servant while in the performance of his duties. The purpose was to provide a method by which the master might, if he saw proper, relieve himself of his common-law liability without depriving the servant of an adequate remedy. The Legislature either doubted its power to force the servant, against his will, to surrender his common-law right to hold the master liable and look for relief to another party, or it doubted the propriety of doing so. It therefore provided, in the Workmen's Compensation Act, for an option to be exercised by the servant, allowing him, if he saw proper, upon entering the service, to retain his common-law right to hold the master liable. But it was also provided that upon entering the service of a subscribing employer a waiver of that common-law right would be presumed unless it was expressly retained by the servant. The law placed upon the latter the duty of refusing to surrender such right...