Texas Employers Insurance Ass'n v. Wermske, A-8128

• Decision Date: 12 July 1961
• Docket Number: No. A-8128,A-8128
• Citation: 349 S.W.2d 90,162 Tex. 540
• Parties: TEXAS EMPLOYERS INSURANCE ASS'N, Petitioner, v. Esther Lewis WERMSKE, Respondent.
• Court: Texas Supreme Court

Page 90

349 S.W.2d 90

162 Tex. 540

TEXAS EMPLOYERS INSURANCE ASS'N, Petitioner, v. Esther Lewis WERMSKE, Respondent.

No. A-8128.

Supreme Court of Texas.

July 12, 1961.

Rehearing Denied Oct. 3, 1961.

Underwood, Wilson, Sutton, Heare & Berry, amarillo, for petitioner.

Linn & Helms, Spearman, for respondent.

GREENHILL, Justice.

This is a workmen's compensation case. The principal question here is whether good cause was shown for failure to file the claim for compensation within the six months' time prescribed by statute. The jury found that good cause did exist, and judgment was entered for the plaintiff. That judgment was affirmed by the Amarillo Court of Civil Appeals. 339 S.W.2d 408.

Lowell Wermske was employed as an engineer by the Phillips Pipeline Company at its pumping station in Ochiltree County. Part of his duties was the care of a part of the grounds of the station. While he was on duty alone, he was making a device, from an oil drum, with which to spray weeds. The drum exploded as he was filling it with air under pressure. He was instantly killed. There is a question as to whether he intended to spray the weeds on the Phillips' tract or on his own adjoining land. We find it unnecessary to decide that question.

Wermske was killed on June 22, 1957. The period of six months provided for in the statute for filing a claim with the Industrial Accident Board begins to run on the date of the injury and not on any subsequent date. Petroleum Casualty Co. v. Dean, 1939, 132 Tex. 320, 122 S.W.2d 1053. The claim was not filed earlier than February 10, 1959, some 20 months after the injury. ¹ Thus, the claim was filed some 14 months late.

Section 4a of Article 8307, Vernon's Texas Civil Statutes, says in part:

'For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to * * * the filing of the claim before the Board.'

When this claim was filed with the Board, it was denied because it was filed too late and because 'the evidence submitted to this board does not establish good cause for such delay up to the date of filing claim.'

The evidence before the trial court on the 'good cause,' viewed most favorably to the plaintiff, was as follows: The plaintiff, Mrs. Wermske, the widow of the deceased workman, testified that after Wermske's death on June 22, 1957, she went to an attorney's office (naming him) to employ him to look after Wermske's estate. Thereafter a representative of the insurance company which carried the workmen's compensation visited her. He brought her some papers, which he said related to workmen's compensation, and he asked her to fill them out and mail them to him in Amarillo. She did so. In August, 1957, the representative returned to Mrs. Wermske's home, and told her that the company had refused to make payment. So in 'the first part of August' of 1957, she employed the same attorney to handle her claim for workmen's compensation. Some four months then remained within which claim could have been filed in time. She testified that the attorney assured her that the claim had been filed. He assured her several times that her claim was being taken care of. The attorney did handle the estate. But 'late in 1958,' the attorney told her that he couldn't handle her case for compensation. He told her he did not have time to handle her business. She then employed her present attorneys on December 30, 1958, which was shortly after her final conversation with her first attorney.

On that same day, these new attorneys wrote the Board at Austin informing it of their power of attorney to represent Mrs. Wermske in claims for her husband's death in June of 1957. On January 8, 1959, the Board wrote the new attorneys that they had no record of any such claim; that none had been received or filed. Mrs. Wermske testified that up to this time, she thought her claim had been filed with the Board. After further correspondence with the Board, the new attorneys prepared a claim, dated February 10, 1959, which was filed with the Board.

The attorney first employed by Mrs. Wermske testified that she came to his office about the first of July, 1957, following Wermske's death on June 22, 1957. He filed for letters of administration for her on her husband's estate. About the same time, she employed him to file claim for his death.

The attorney testified that he prepared a claim for filing. He was but of forms; so he typed up one himself. He did not personally file the claim with the Board. When asked if he mailed the claim to the Board at Austin for filing, he at first said that he did; that he did so in September or October of 1957. A copy of the claim he prepared was introduced in evidence. It is not dated.

When asked again whether he mailed the claim, he testified:

'Yes, we did. Let me clarify that a little. You say did I deposit it. It was prepared for deposit and I can't just tell you that I actually myself carried it to the post office, or whether the girl did at the office, but it was prepared for mailing and left for deposit in the United States mail.'

The letter was left on a desk for mailing. The girl who was his secretary was not called as a witness.

Over objection, the attorney was permitted to testify that thereafter a representative of the insurance company consulted him three times in March or April of 1958. The admissiblility of this testimony is the subject of a point or error here; but we shall assume it to be admissible.

The attorney testified that closed out Wermske's estate, but he was not sure when. It was six months to a year before the trial of this case. At that time, he testified, his employment for her was at an end: 'On this claim, I told her from what it appeared that I would be unable to effect a collection or settlement.' He further testified that he turned the file on Wermske's claim over to her new attorneys.

There was no correspondence in the file. It contained no communication from the Board and no acknowledgment of a receipt of any claim prepared or filed by the first attorney.

Records of the Industrial Accident Board were introduced. They reflected that no claim was received or filed concerning Wermske's death until the one prepared by the new attorneys, dated February 10, 1959. A diligent search had been made, but this was all that they had. There was no earlier claim. The earliest correspondence they had was dated December 30, 1958, containing the power of attorney for the new attorneys. Also introduced was a letter from the executive director of the Board to the new attorneys, dated January 8, 1959, stating that 'we are unable to locate a record of the above-styled fatal injury. We are enclosing standard fatal forms for your to complete and return to this office on behalf of your client.' This same executive advised the new attorneys on January 16, 1959, that the Board had received a letter from phillips which stated in part, 'This is to advise you that we have received no notice of any job-connected injury to this party.'

When there is positive testimony that a letter has been enclosed in an envelope which is correctly stamped and addressed and is deposited in the mail, there is a rebuttable presumption that it was duly received. Southland Life Insurance Co. v. Greenwade, 1942, 138 Tex. 450, 159 S.W.2d 854. Two witnesses in that case saw the claimant mail the letter in the post office.

The testimony here is not sufficient to raise that presumption. The attorney's testimony is that the claim was prepared for filing and left on his secretary's desk for mailing. There is no testimony that the claim was placed in an envelope which was properly stamped. But assuming that this is implied from his testimony, the attorney was unable to testify that he mailed the letter or that his secretary mailed it. The secretary did not testify in the case. Where the sender relies on office custom to support the inference of mailing, the majority rule is that there must be corroborating circumstances to support the inference that the custom has been carried out. See annotation, 25 A.L.R. 9, at 19, supplemented in 86 A.L.R. 541, at page 544. Since the presumption is not raised, we need not review the evidence from the Board to the effect that the claim was never received, or the weight to be attributed to the fact that the attorney received no acknowledgment or other answer from the Board over a period of months.

We turn now to the question as to whether there is evidence of good cause for failure to file the claim as required by the statute.

The problem of the failure of an attorney to file a claim for compensation in time has been before this Court on several occasions. In Petroleum Casualty Co. v. Dean, 1939, 132 Tex. 320, 122 S.W.2d 1053, the Texas employee, after injury, went to Mississippi. He there employed an attorney and relied upon him to file and prosecute his claim for compensation. The Mississippi attorney did not file the claim in time because he did not know the Texas period for the filing of claims was so short. He made two unsuccessful attempts to get Texas attorneys to handle the case for him. The claim was filed 11 1/2 months late ² by a third Texas attorney who was engaged by the Mississippi attorney. This Court held that, as a matter of law, good cause did not exist for failure to file the claim within the time prescribed.

The court did not write in terms of agency in the Dean case. But the legal result reached is that of agency: i. e., the loss of the claim because of the non-action of the attorney acting (or failing to act) within the scope of his employment or agency. The opinion did not rest upon the basis of the prudence or imprudence of the claimant in relying on his Mississippi attorney, but upon the acts of the attorney himself.

There are cases which hold that it rule does not apply where the attorney deliberately acts to injure the client or is guilty of bad faith or fraud. None of these...