Texas Indemnity Ins. Co. v. Cook

• Decision Date: 16 October 1935
• Docket Number: No. 8090.,8090.
• Citation: 87 S.W.2d 830
• Parties: TEXAS INDEMNITY INS. CO. v. COOK.
• Court: Texas Court of Appeals

87 S.W.2d 830

TEXAS INDEMNITY INS. CO. v. COOK.

No. 8090.

Court of Civil Appeals of Texas. Austin.

October 16, 1935.

Rehearing Denied November 6, 1935.

Appeal from District Court, Coleman County; O. L. Parish, Judge.

Suit by C. T. Cook against the Texas Indemnity Insurance Company to set aside a ruling of the Industrial Board denying plaintiff's claim for compensation. From a judgment for plaintiff, defendant appeals.

Reversed and rendered.

Critz & Woodward, of Coleman, and J. W. Hassell and J. W. Hassell, Jr., both of Dallas, for appellant.

Grisham Bros., of Eastland, for appellee.

McCLENDON, Chief Justice.

This is a workman's compensation case. The suit was brought by Cook (appellee) against the indemnity company (appellant), insurance carrier for Magnolia Petroleum Company (called herein the Magnolia), in the nature of an appeal from an order of the Industrial Accident Board (herein called the board), denying Cook's claim for compensation. Cook recovered in a trial to a jury on special issues; and the indemnity company has appealed.

The accident resulting in the injury involved in the claim occurred September 28, 1928. The claim was filed with the board in February, 1933. The controlling question in the appeal is whether the evidence supports the jury finding that Cook showed good cause for failure to file his claim with the board within the six-month statutory period (R.C.S. art. 8307, § 4a) and up to the actual time of its filing. Holloway v. Texas Indemnity Ins. Co. (Tex. Com.App.) 40 S.W.(2d) 75; Ocean Accident & Guarantee Corporation v. Pruitt (Tex.Com.App.) 58 S.W.(2d) 41; New Amsterdam Casualty Co. v. Scott (Tex.Civ. App.) 54 S.W.(2d) 175; Petroleum Casualty Co. v. Fulton (Tex.Civ.App.) 63 S.W. (2d) 1068. Since we hold that this question must be answered in the negative, discussion of other issues raised in the appeal are pretermitted.

The statement of facts is quite voluminous, and devoted largely to evidence designed to support Cook's contention upon this issue of good cause for the delay. It will only be necessary, however, to a clear presentation of our holding, to give in brief outline what we regard as the controlling facts in the case, stated most strongly in Cook's favor.

At the time of the accident Cook was an employee of the Magnolia engaged in general construction, rig building, and setting gas engines. While so engaged, he fell from a scaffold and received injuries which incapacitated him for some two weeks or more. He quit work and was treated by a physician. In a conversation with a representative of the Magnolia, he was assured that the Magnolia would look after his claim against the indemnity company, filing for him all necessary papers. He drew compensation checks for two weeks ($34) from the indemnity company, and on October 27, 1928, he executed a full release to the indemnity company. This release was filed with the board, but no action was taken thereon by and no claim filed with the board. He went back to work for the Magnolia some time in October, 1928, and continued in its employ until June, 1931, when he was compelled to quit work altogether on account of having developed, as a result of the accident, an advanced case of pulmonary tuberculosis. It is not necessary to detail the progressive stages in his impaired physical condition, culminating in his final total disability in June, 1931. At first he was able for a time to do heavy manual labor; but from time to time thereafter he was shifted to lighter work. In June, 1931, he talked with Holmes, a representative of the Magnolia in Dallas, about being examined by the indemnity company. Holmes said he saw no reason why this should not be done, and promised to advise him at Kilgore. A few days later he was advised that "the insurance people said they couldn't have anything to do with it." In a later deposition Cook testified upon this point that he was told by a clerk in the Kilgore office of the Magnolia "that Mr. Holmes said the insurance people said it had been so long since the injury they didn't see any reason to reopen the case." From then until February, 1933, his movements and physical and mental condition are given in the evidence with much particularity. Briefly summarized, he went to the State Tubercular Sanatorium at Carlsbad about August, 1931, and remained there until about February, 1932. There he was advised that by taking good care of himself he might hope to be well in about two years. From then on he lived at various places, spending a large portion of the time visiting relatives. He tried on several occasions to do light work, but found invariably that his condition would not admit of it. He experienced much worry and anxiety over his condition.

The grounds relied upon as constituting good cause for failure to investigate or file his claim for the nineteen months between June, 1931, and February, 1933, are in substance these:

Cook thought all along, up to the latter date when he consulted counsel for the first time, that his claim had been filed in September or October, 1928, by the Magnolia; he believed up to that time he would get well and could go back to work, in which event he intended to waive his claim; he was afraid if he filed a claim for additional compensation it would prevent him from getting work. All of these considerations, aggravated by his mental anxiety and worry and his bad state of health, combined to constitute good cause for the delay.

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