Texas State Highway Dept. v. Fillmon, 2840

• Decision Date: 09 February 1951
• Docket Number: No. 2840,2840
• Parties: TEXAS STATE HIGHWAY DEPARTMENT v. FILLMON.
• Court: Texas Court of Appeals

Page 635

236 S.W.2d 635

TEXAS STATE HIGHWAY DEPARTMENT v. FILLMON.

No. 2840.

Court of Civil Appeals of Texas, Eastland.

Feb. 9, 1951.

Rehearing Denied March 2, 1951.

William S. Lott, Asst. Gen., of Texas, for appellant.

Brooks, Duke, Templeton & Brooks, Abilene, for appellee.

COLLINGS, Justice.

This is a Workmen's Compensation case brought by appellee, Ava Fillmon, against appellant, Texas State Highway Department, claiming compensation on account of the death of her husband as a result of an injury alleged to have been sustained by him while working for appellant. It was alleged that E. L. Fillmon, the deceased, had been directed as an employee of appellant, to work in a gravel pit near Abilene Taylor County, Texas, and to remove large stones from an excavation and clean up the premises in general; that while engaged in removing said stones from said pit, deceased, on account of exertion and the high temperature, suffered a heat stroke on September 5, 1947, which caused his death. Appellee filed her claim with the Industrial Accident Board on or about August 29, 1949, long after the six months period within which the Statutes provide such claims shall be filed, but contended that good cause existed for her failure to sooner file same. The Board notified appellee that the claim had been set for hearing on Tuesday, November 1, 1949. Thereafter, on November 17th, the Board entered its order and ruling dismissing the claim for the stated reason that appellee 'failed to establish * * * that claim was filed within six months as provided by law or that good cause existed for delay in filing to the date it was filed. Therefore, the Board is without jurisdiction and claim is dismissed from the docket of said cases of the Board without further action.' On appeal to the District Court, the case was tried before the court without a jury and judgment was rendered for appellee. Texas State Highway Department has brought this appeal.

Appellant's first point complains that 'the court erred in overruling defendant's plea in abatement and plea to the jurisdiction in that the trial court did not have jurisdiction to pass on any question other than good cause.' Appellant contends that the order of the Board dismissing the claim for the reason stated was not a final award of the claim as contemplated by Section 5, art. 8307, Vernon's Annotated Civil Statutes of Texas, from which an appeal could be prosecuted. Appellant concedes that the ruling of the Board is final and appealable on the issue of the Board's jurisdiction to hear the claim but urges that the jurisdiction of the District Court on appeal was limited to a determination of the issue of good cause, and that the court did not have jurisdiction to determine the merits of the claim for compensation. We cannot agree with this contention. The question of whether a claimant has good cause for delay in filing a claim, if that issue is in the case, is a fact issue to be decided by the Board in making its award or final ruling the same as any other issue of fact. Coffey v. Management Company of Texas, Tex.Civ.App., 121 S.W.2d 377.

The Board, after having set a time for hearing the claim, found as a fact, that appellee 'failed to establish by proof that claim was filed within six months as provided by law or that good cause existed for delay * * *.' Based upon this finding the Board 'dismissed' the claim from its docket. The effect of this ruling by the Board was to deny appellee compensation. In our opinion, the order was a final ruling on appellee's claim as contemplated by the Statute and was appealable. Verrett v. Texas Employers' Ins. Ass'n, Tex.Civ.App., 223 S.W.2d 33; Southern Casualty Co. v. Todd, Tex.Com.App., 29 S.W.2d 973; Munmon v. Traders & General Ins. Co., Tex.Civ.App., 170 S.W.2d 262.

The trial in the District Court was de novo and that court had the power to determine every issue involved whether presented to or acted on by the Board or not. Texas Employers' Ins. Ass'n v. Bradshaw, Tex.Civ.App., 27 S.W.2d 314.

The husband of appellee Ava Fillmon, died on September 5, 1947. Appellee's claim was filed with the Industrial Accident Board on or about August 29, 1949, long after the expiration of the six months period provided for by the State. In appellant's second and third points it is contended that appellee failed, as a matter of law, to establish good cause for her failure to file claim within the time required by the Statute and that the court erred in holding that good cause had been shown.

The test of a showing of good cause for delay in filing a claim beyond the statutory period is the standard of conduct of an ordinarily prudent person. The question is one of fact to be determined by the trial court of jury whose decision will not be disturbed unless the evidence is such that reasonable minds could reach no other conclusion than that good cause was not shown. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370; Watson v. Texas Indemnity Ins. Co., 147 Tex. 40, 210 S.W.2d 989; LaCour v. Continental Casualty Co., Tex.Civ.App., 163 S.W.2d 676; Martin v. Travelers' Ins. Co., Tex.Civ.App., 196 S.W.2d 544; Texas Indemnity Insurance Co. v. Cook, Tex.Civ.App., 87 S.W.2d 830 (Writ Ref.).

Several witnesses testified that they knew Ava Fillmon and had opportunity to see and observe her during the period between the death or her husband and the filing of her claim before the Board. They all stated that during this period, Mrs. Fillmon was sick mentally and physically. They expressed the opinion that she was not able to exercise the same prudence as an ordinarily normal person, and that during all of such period was mentally and physically incapable of properly seeing after her business affairs. Mrs. Davis, a sister of appellee, testified that she or another sister stayed with appellee 'most every day and every other night' during that time because she was not able to be left alone; that 'she wasn't physically or mentally able to be left alone;' that 'she was not rational any of the time, I don't think, * * * and did not ever appear to be normal and able to carry on business.' During a portion of the time appellee was in Arizona but Mrs. Davis testified that from her letters it did not appear that she was any better while there.

Dr. Adams and Dr. Prichard had both visited and treated Mrs. Fillmon during portions of the period in question and both testified that they found her to be extremely nervous, despondent and almost incoherent; that it was hard for her to follow one line of thought. Dr. Adams testified that in his opinion she was not capable, during the time she was his patient, of transacting her business affairs in the manner of an ordinarily prudent person. Mrs. Fillmon had been a patient of Dr. Adams for a period of about a year beginning March 25, 1948, and of Dr. Prichard from about the middle of March, 1949, until the time of the trial of this cause. Dr. Prichard testified that her condition of incapacity extended from the time he began to see her professionally until during August, 1949. In our opinion, the evidence was ample to support the finding of the court that good cause was shown for appellee's delay in filing her claim until August 29, 1949. Texas Employers' Ins. Ass'n v. Beckman, Tex.Civ.App., 207 S.W.2d 183 (NRE); Watson v. Texas Indemnity Ins. Co., supra.

Appellant contends in its fourth point that there was no evidence as a matter of law, to support the finding and judgment of the court that deceased, E. L. Fillmon, died as a result of heat stroke. The following is a brief summary of the evidence bearing upon the question:

On September 5, 1949, E. L. Fillmon was working for appellant in a gravel pit near Abilene. He was working in the pit alone. Appellant's other employees were driving trucks and came to the pit only to re-load and carry the gravel away. Deceased had been instructed to, and was, removing rocks from the pit which were considered too large to be used in the construction work and did his work at a time when the trucks were not in the pit. The rocks varied in size from a man's fist to the size of a man's head, some of the largest weighing as much as fifteen pounds. They were being thrown out of the way so that they would not be loaded on the trucks and used on the road. We cannot agree with appellant's contention that there was no evidence that deceased actually engaged in any type of work on the morning of his death. The witness Mangum testified that he 'was just throwing small rock out of the pit * * * I would say there was not a boulder larger than that hat in the pit * * *.'

The gravel pit in which E. L. Fillmon was working was located on a small knoll or rolling place. It was about 200 feet long by 75 feet wide and was 3 or 4 feet deep. It was open at both ends and one side was about half open. Deceased had complained of 'hurting' to fellow employees the day before and two days before the day of his death. At about 11 o'clock a. m. on ...