Texas Employers' Ins. Ass'n v. Fricker

• Court: Texas Court of Appeals
• Writing for the Court: Randolph
• Citation: Texas Employers' Ins. Ass'n v. Fricker, 16 S.W.2d 390 (Tex. App. 1929)
• Decision Date: 20 March 1929
• Docket Number: (No. 3202.)
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. FRICKER et al.

16 S.W.2d 390

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

(No. 3202.)

Court of Civil Appeals of Texas. Amarillo.

March 20, 1929.

Rehearing Denied April 17, 1929.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Suits by the Texas Employers' Insurance Association against Charles Fricker and others, and by Charles Fricker against the Texas Employers' Insurance Association and another, to set aside an award of the Industrial Accident Board. From an adverse judgment, the insurance association appeals. Affirmed.

Bullington, Boone, Humphrey & King, of Wichita Falls, for appellant.

Heyser & Hicks, of Wichita Falls, and H. O. Williams, of San Angelo, for appellees.

RANDOLPH, J.

The defendant Fricker filed his claim with the Industrial Accident Board of Texas, seeking compensation for incapacity to labor, caused by injuries which will be discussed later in detail, against the Associated Indemnity Corporation. The Associated Indemnity Corporation brought the Texas Employers' Insurance Association before the Industrial Accident Board as the party primarily liable for the compensation due the defendant Fricker. The Industrial Accident Board made an award in favor of the defendant Fricker, and both Fricker and the Texas Employers' Insurance Association gave notice that they would not abide the decision of the board, and in due time filed suit in the district court of Wichita county to set aside the award made by the board. On trial, the two cases were consolidated and tried de novo, and judgment was rendered in favor of the defendant Fricker against the Texas Employers' Insurance Association and the Associated Indemnity Corporation. From such judgment the Texas Employers' Insurance Association only has appealed.

The defendant Fricker was working for the American Refining Company on May 28, 1924, and had been working for it for a number of years prior thereto, and on this date he received an injury to his knee, was taken by his employer to the Wichita Falls Clinic for treatment, received two or three treatments, and then did not return to the clinic. He was away from work for a period of seven days only, and made no claim for compensation by reason of that accident at that time. He continued working for the American Refining Company from that time until May 20, 1927. In the meantime, the American Refining Company had changed insurers, and the Associated Indemnity Corporation became the insurer of said company in place of the Texas Employers' Insurance Association, which was the insurer on the first-named date. On May 20, 1927, the defendant was injured in another accident, and, after receiving this injury, he was unable to work any longer, and his then condition resulted in it becoming necessary to amputate his leg at the hip, thereby totally destroying his capacity to do the labor and render the services that he was capacitated to perform. Within six months after May 20, 1927, the defendant filed a claim for compensation for the injury occurring on May 20, 1927, with the Industrial Accident Board against the American Refining Company and the Associated Indemnity Corporation; thereafter the Associated Indemnity Corporation, as stated, brought before the Industrial Accident Board the Texas Employers' Insurance Association, and the board made an award which was within the jurisdiction of the district court of Wichita county, and, within twenty days thereafter, both Fricker and the Texas Employers' Insurance Association, as stated, gave notice that they would not abide the decision of the board, and, within twenty days after the giving of such notice, filed suit in the district court of Wichita county, Tex., the county in which both of such accidents occurred.

The defendant Fricker, in his answer and cross-action in the suit of the Texas Employers' Insurance Association, alleged that he received both of said injuries; the first injury occurring as aforesaid on May 28, 1924, in which the Texas Employers' Insurance Association was insurer, and the second injury on May 20, 1927, in which the Associated Indemnity Corporation is insurer, alleging that each of said companies had notice of the injury within thirty days after the occurrence of same, that he filed a claim for compensation before the Industrial Accident Board against the Associated Indemnity Corporation within six months after the occurrence of the second injury and that the injury which he received on May 20, 1927, produced his total incapacity.

Fricker further alleges as his reason why he did not file his claim with the Industrial Accident Board: "Defendant further shows to the Court that at the time his knee was injured May 28, 1924, the employer, American Refining Company, and the Insurer, Texas Employers' Insurance Association, had actual notice of the injury, but neither the defendant nor the said employer, nor the said insurer, realized or contemplated that said injury was of either a serious or a permanent nature, but all considered same as slight and trivial and as this defendant was able to return to his work within eight days from said date no compensation was sought or contemplated, and between the time during said date and the time when he became confined to his bed in 1927, the defendant did not contemplate or realize, or have reason to contemplate or realize, that he had suffered at the time of the first accident any compensable injury, and even after he had become confined to his bed in 1927, and after he had become in the condition aforesaid, necessitating the amputation of his leg, he considered his condition due solely to the injury on May 20, 1927, and, accordingly defendant gave the statutory notice only to the Associated Indemnity Corporation within thirty days from the date of the last accident and made claim for compensation and filed proper application therefor within six months from date of said injury; said claim for compensation being made before the Industrial Accident Board only as against the Associated Indemnity Corporation, but both of said insurers were thus before the said Industrial Accident Board, defendant, in view of all the circumstances aforesaid, having legal excuse for failing to himself join the said Texas Employers' Insurance Association in the application made by him to Industrial Accident Board, and both of said insurers are thus properly before this court."

Defendant also alleged that his present physical condition was directly and proximately caused by the injuries complained of; the first occurring May 28, 1924, and the second May 20, 1927.

The Associated Indemnity Corporation denied that it was the insurer at the time that said Fricker received his injuries which caused his total incapacity, and alleged also that such incapacity was occasioned by the injury which he received May 28, 1924.

The Texas Employers' Insurance Association filed its denial to all of the allegations by these respective parties, and further alleged: "And for further answer herein, if same be necessary, this plaintiff in reply to defendant Chas. Fricker's answer without waiving its pleas in abatement and its exceptions, says that it denies that the defendant Charles Fricker ever received any injuries, but that if he did, he received same on or about the 28th day of May, 1924, and that he failed to give any notice of his injury to his insurer within thirty days as prescribed by the laws pertaining to such transactions, and failed to file any claim for any damages with the Texas Industrial Accident Board, or the insurer, by reason of his injuries within six months after the occurrence of same, and fails to show any good cause or plead any good cause authorizing a waiver of the provisions of the statute of the State of Texas, but on the contrary, never at any time sought to hold this plaintiff liable in any proceedings for more than two years after the alleged happening of this event, and which plea of limitation the plaintiff here pleads and further says that the defendant, Charles Fricker, never at any time attempted to set up or claim any character of damage for any injuries which he received for a period of more than two years, and if this defendant had complied with the statute pertaining to such transactions by giving to the insurer notice of his injury within thirty days, and filing with the insurer and the Texas Industrial Accident Board a claim for damages within six months after the alleged occurrence, this plaintiff, as insurer, could and would have had the opportunity of having a physical examination made of this defendant, and could and would have had an opportunity to have had...