Texas General Indemnity Co. v. Longlois

• Decision Date: 13 February 1953
• Docket Number: No. 13906.,13906.
• Citation: 200 F.2d 780
• Parties: TEXAS GENERAL INDEMNITY CO. v. LONGLOIS.
• Court: U.S. Court of Appeals — Fifth Circuit

200 F.2d 780 (1953)

TEXAS GENERAL INDEMNITY CO. v. LONGLOIS.

No. 13906.

United States Court of Appeals, Fifth Circuit.

January 5, 1953.

Rehearing Denied February 13, 1953.

James Little, Big Spring, Tex., for appellant.

George Finley and John R. Lee, Kermit, Tex., for appellee.

Before HOLMES, RUSSELL, and STRUM, Circuit Judges.

HOLMES, Circuit Judge.

This appeal is from a judgment of the district court for the plaintiff below, entered upon the verdict of a jury, in a direct action against the insurance company to recover under the workmen's compensation law of Texas, Revised Civil Statutes of Texas, Article 8306 et seq., Vernon's Ann. Civ.St. art. 8306 et seq. The complaint alleged that, during the regular course of his employment with Stanolind Oil and Gas Company, the appellee received an injury resulting in total and permanent disability, and that his failure to file notice and claim for compensation within the statutory period of six months was occasioned and excused by good cause. The jury, in awarding the verdict, found appellee to be seventy per cent incapacitated, and that his delay in filing notice was justified by good cause.

The decisive and material facts are that the appellee, on or about May 6, 1949, sustained injuries while performing the duties of a roustabout for the Stanolind Company, which was insured by the appellant. While tightening a valve with a heavy wrench, a sudden sharp pain in his chest caused him to lose his equilibrium and fall against a pumping unit. The company supervisor was given actual notice of the accident, and formal notice and request for medical attention were filed with the company three days after the accident. On the day following the injury, the appellee was assigned duties of a nonstrenuous nature, and several days later was sent for treatment to the company's physician, who prescribed a complete rest of several weeks. Upon his own insistence, however, appellee was issued a light-duty slip, with instructions to return each day for therapy. Subsequently, he requested and received a one-week's vacation in order to regain some of his strength; and, on his return, he was again sent to the company's physician, who discovered a serious heart ailment and advised him that his condition prevented further strenuous activity. Appellee's name was then placed on the sick roster until September, 1949, at which time his salary and employment were terminated.

During a consultation with the company's superintendent, after his discharge, the appellee's insurance policy was discussed, and the superintendent advised him "not to worry"; that "everything would be taken care of." At this time appellee completed certain insurance forms that were furnished by the company; and, on a later occasion, the president of the employees' bargaining union, Walker, and a company supervisor, upon examining the forms, made substantially the same promises. In still another conference with Walker, the latter told appellee that he "did not have a care in the world," and that he "would be taken care of." During a discussion of his case with the labor superintendent, the latter patted him on the back and told him that he had nothing to worry about.

In December, 1949, the appellee requested the Industrial Relations Superintendent, Johnson, to write the Veterans Administration in his behalf. Johnson agreed to do so, and suggested that appellee not employ an attorney, as this would necessitate the payment of an attorney's fee, and for appellee "just to wait." In a further conversation with the superintendent and another official of the company, appellee testified that he was left with the impression that he was to be reemployed or be paid the insurance due him. In late December, 1949, Johnson advised appellee by telephone that "everything would work out very good." In February, 1950, appellee presented his claim to the company's grievance board, and was further encouraged to believe that he was to be reemployed or given his insurance.

In April, 1950, after being advised that the entire matter had been disposed of, appellee employed an attorney, but requested him to take no action until positively apprised of the status of his claim and possibility of reemployment. On April 28, 1950, while his attorney was en route to a Dallas hospital, appellee narrated the foregoing details to him, and requested him to prosecute the claim. After undergoing a serious operation, the attorney was confined to his bed until July 6, 1950. On June 5, 1950, the appellee, with the aid of the attorney's wife, secured the compensation forms from her husband's office. Thereafter, being still in a weakened condition, the attorney referred the case to two other lawyers, who contacted appellee, checked the completed forms, and filed same with the Industrial Accident Board. The Board received the claim on July 3, 1950, and rejected it on September 18, 1950.

The appellant contends that there is insufficient evidence to...