Texas General Indem. Co. v. McNeill

• Decision Date: 17 September 1953
• Docket Number: No. 4885,4885
• Citation: Texas General Indem. Co. v. McNeill, 261 S.W.2d 378 (Tex. Ct. App. 1953)
• Parties: TEXAS GENERAL INDEMNITY CO. v. McNEILL.
• Court: Texas Civil Court of Appeals

Page 378

261 S.W.2d 378

TEXAS GENERAL INDEMNITY CO. v. McNEILL.

No. 4885.

Court of Civil Appeals of Texas, Beaumont.

Sept. 17, 1953.

Fountain, Cox & Gaines, Houston, Lewis Lanier, Jasper, for appellant.

Faver & Barnes, Jasper, for appellee.

PER CURIAM.

This is an appeal from a judgment in the district court of Jasper County in a workman's compensation case. On the verdict of a jury, judgment was for appellee, John R. McNeill, against appellant, Texas General Indemnity Company, for total temporary disability for 123 weeks.

Appellee McNeill was accidentally injured in the course of his employment for Kirby Lumber Company at its sawmill at Call, in Jasper County, on October 28, 1950. He was injured when he fell against a machine called the 'log throat' or 'hogging machine' and hurt the front portion of his right side. He was paid compensation by the appellant for two weeks, returned to work three weeks after the accident and then became physically unable to work. He was treated by Dr. Moore in Kirbyville for a heart attack in November, 1950. Dr. Moore had treated appellee shortly after the accident, and when complaint was made of a pain in his right chest, Dr. Moore taped his side. In November, 1950, Dr. Moore treated him again and diagnosed his trouble as a myocardial infarction. On November 21 or 28 he suffered what appeared to be a heart attack on the street in Kirbyville after visiting Dr. Moore's office. Dr. Moore treated him with nitroglycerin tablets until he had relief from the acute condition there. He also made an electrocardiogram, which confirmed his diagnosis made previously as to the heart condition. He made a diagnosis of myocardial infarction in December 19, 1950, and on November 29, 1950, thought it was angina pectoris.

In January, 1951, appellee was admitted to the U. S. Veterans' Hospital in Houston, and was treated there intermittently to June 15, 1951. He was also there for treatment from September 24 to November 19, 1951. At that hospital, he had his gallbladder removed, dental work performed, an abscess treated, and numerous tests made and observation taken.

After he was discharged, he employed attorneys in his case and learned from them that no claim for compensation had been filed in his behalf. His attorneys filed his claim August 24, 1951, ten months after his accidental injury.

On August 27, 1951, he went to Dr. McGrath of Jasper for treatment, who found three ribs fractured where they join the spinal column. Dr. McGrath testified that from his own findings and from McNeill's history of the accident, it was his opinion that the injury he received at the sawmill was the cause of his condition, and that McNeill was totally and permanently disabled.

The jury by its verdict, in answer to Special Issues, found that one Dockery, cashier for McNeill's employer, represented to McNeill that he would take care of the filing of all necessary papers, collect any insurance to which he was entitled, and that McNeill relied upon such representations and that his relying upon said representations constituted good cause for his failure to file his claim for compensation until the time it was filed. By its Point No. 3 the appellant maintains that the evidence was insufficient to support the jury's verdict that the appellee had good cause for failure to file his claim within six months from the date of injury. On this question the appellee testified that Mr. Dockery was the cashier in the office of his employer Kirby Lumber Corporation at the time he was injured at its sawmill. McNeill is an uneducated man, having gone only through the 4th grade at school. He further testified that Dockery told appellee that he had the papers in the office and would take care of all necessary papers for him, would look after his claim for compensation, and would file the same for him; that appellee relied upon those representations by Dockery and believed them all the way through until after he had retained his lawyers; that when he retained his lawyers he still believed that his claim for compensation had been filed, and learned the contrary only two or three days after he had turned his case over to lawyers for handling; and that his lawyers immediately filed a claim after they were retained. Appellee did not know the difference between compensation checks and checks received upon a policy of insurance issued by Metropolitan Life Insurance Company. Cards from appellee to Mr. B. P. Dockery revealed that while he was undergoing treatment in the Veterans' Hospital in Houston, Texas, he was writing to Mr. Dockery to have his checks directed to him in the Veterans' Administration Hospital. One of the cards contained as a complete paragraph this expression, 'Oh yes, see about my checks for me.'

It was in evidence that McNeill did receive two weekly compensation checks shortly after he was injured.

Appellee admitted that as early as December, 1950, and January, 1951, he knew that something was wrong with his compensation checks, and that the company was 'messing up' things. This testimony only served, however, to raise a fact question for the jury as to whether McNeill relied on Dockery's representation. It must be kept in mind that he testified that even at that time and until August, 1951, he thought his claim for compensation had been filed. This belief was not unreasonable, since it is undisputed that he did receive some payment of compensation benefits.

We believe this evidence is sufficient to support the jury's finding of good cause for failure to file his claim until the time it was filed and the point is overruled.

By its first point the appellant complains of the trial court's action in overruling its exceptions and objections to Special Issues Nos. 11, 12 and 13 of the court's charge. By its 4th point it complains of the action of the trial court in overruling its objections to Special Issues 14 and 15 of the court's charge. In its brief it refers us to the instrument in the transcript called 'Defendant's exceptions to the charge of the Court,' on pages 30 to 34, inclusive, of the transcript. This instrument was not signed by the trial judge and therefore there is nothing in the transcript to show that this document was ever presented to the trial court or acted upon by him as required by Rule 272, Texas Rules of Civil Procedure. The points based upon and relying upon the purported objections to the court's charge contained in this document cannot be considered since they present no error.

The appellant also filed and brings forward in the transcript its supplemental objections and exceptions (which is signed 'Refused. E. A. Lindsey, District Judge') to Special Issues Nos. 14 and 15 which are contained in its 5th point. These objections are as follows:

'1.

'Defendant objects and excepts to Issue 14 in that it does not permit the jury to answer the question raised by the pleadings and the proof of plaintiff's incapacity may have at the expiration of some given period of time been due solely to other diseases and conditions than those received by virtue of the alleged accidental injury, and that it does not allow the jury to find that plaintiff, as alleged by pleadings and shown in the evidence, may have recovered at the end of two weeks, or some other number of weeks, from the incapacity suffered by cirtue of his alleged accidental injury and that any further incapacity would be due solely to other diseases without reference to any alleged accidental injury. Further, that it would be misleading and confusing to the jury.

'2.

'Defendant objects and excepts to Special Issue No. 15 in that it is misleading and confusing to the jury, and further, it will not allow the jury to find that plaintiff, John R. McNeill, sustained an incapacity for manual labor and hard work for a certain given definite length of time due to the alleged accidental injury, and that he may have later fully recovered from the same and that any further incapacity suffered by John R. McNeill after such recovery would be due solely to other conditions and in no way contributed to or caused by any alleged accident sustained while in the employ of Kirby Lumber Corporation; and further, that said issue is duplicitious.'

The issues Nos. 14 and 15 as submitted by the court and answered in favor of the appellee by the jury were as follows:

'Issue No. 14

'Do you find from a preponderance of the evidence that plaintiff's incapacity if any you have found is not due solely to diseases?

'Issue No. 15

'Do you find from a preponderance of the evidence that plaintiff's incapacity, if any you have found, is not due solely to other conditions in no wise contributed to or caused by any accident, if any, sustained while employed by said Kirby Lumber Corporation on October 28, 1950?'

We do not believe that the two issues submitted were subject to the objections and criticisms above made by the appellant. The pleading of the appellant in this regard is found in paragraphs 3 and 8 of its answer. It pleaded that the 'plaintiff's incapacity, if any, was and is due solely and alone to...