Thomas v. Westinghouse Elec. & Mfg. Co.

• Decision Date: 13 July 1948
• Citation: 36 So.2d 377,160 Fla. 687
• Parties: THOMAS v. WESTINGHOUSE ELECTRIC & MFG. CO. et al.
• Court: Florida Supreme Court

36 So.2d 377

160 Fla. 687

THOMAS v. WESTINGHOUSE ELECTRIC & MFG. CO. et al.

Florida Supreme Court

July 13, 1948

Rehearing Denied July 20, 1948.

Appeal from Circuit Court, Hillsborough County; Harry N Sandler, judge.

Parks Sanders & McEwan and Donald Walker, all of Orlando, for appellant.

Heskin A Whittaker, of Orlando, for appellees.

BARNS, Justice.

On the 2nd day of August, 1943, the claimant was employed by Westinghouse Electric & Manufacturing Company and on said date was injured in a collision between an automobile in which he was a passenger and a United States Army truck. As a result of said accident claimant suffered a compound fracture of the right humerus, fractures of the eighth, ninth and tenth ribs on the left side, multiple skull fractures, concussion and cerebral hemorrhage, and other internal injuries. The carrier, Travelers Insurance Company, took upon itself payment of compensation and medical expenses, there being no question as to the accident's having been in the course of the claimant's employment.

The carrier voluntarily paid claimant for the period from the accident to October 31, 1943. The last draft, dated May 1, 1944, in the amount of $24.67, was apparently a delayed payment for a period ending October 31, 1943. The last payment of any kind made by the carrier in behalf of claimant was a medical bill in the sum of about $141.00, paid June 30, 1944.

The claimant returned to work in November, 1943, but thereafter found it necessary to stop work. No claim for compensation had at this time been filed with the Florida Industrial Commission and no claim for such compensation was so filed until September 18 1946.

After being relieved by an encephalogram operation in 1946, claimant, on September 18, 1946, by letter to the Florida Industrial Commission, Tallahassee, Florida, filed claim for compensation and, pursuant to this claim, hearings were conducted. The carrier contested payment of the claim because of Section 440.19, Florida Statutes 1941, F.S.A., which requires that claims be filed within one year from the date of the accident or within one year of the last date of payment of compensation. Claimant maintained that it was not necessary for him to have filed his claim within that period because of subsection 3 of Section 440.19, Florida Statutes 1941, F.S.A., which subsection provides that:

'If a person who is entitled to compensation under this chapter is mentally incompetent, * * * the provisions of subsection (1) shall not be applicable so long as such person has no guardian or other authorized representative. * * *'

Before the accident claimant had averaged an income for several years of approximately $300.00 per month, plus expenses, in the X-ray Division of Westinghouse, owned a home in Orlando, worked regularly, and lived in a normal manner with his wife and children.

Since claimant's injuries from said accident, he has done many queer things which indicate his mental incompetence. For example, on one occasion he was arrested and put under a $200.00 bond for being drunk and driving recklessly, when he had not been drinking. This was soon after the accident, on November 2, 1943. He would leave Orlando with a definite town as his destination and end up somewhere else without knowing why he was there. His employer found that he could not 'keep his ducks in a row.' He purchased materials to improve his home that were not suitable and were not used.

After the accident and shortly after being released from the hospital he tore down the chimney on his home and tore a big hole in the wall, took down one partition and tore out the wall on one side, went out and bought lumber and left it on the ground, leaving his home in a spoiled condition. He quarreled with his wife and children without due cause, so that they had to walk around on tiptoes.

Upon returning to work after the accident he became weak and lost about forty-five pounds in six weeks. He had begun to do queer and unusual things. At this point the carrier made an appointment for claimant with a brain specialist, Dr. J. G. Lyerly, of Jacksonville, Florida, who advised claimant to get off of the road and rest.

In April, 1944, he went to Jacksonville from his home in Orlando and ended up in New Orleans, without reason or explanation. He returned in an old 1932 or '33 dilapidated car, having left his good car in Panama City. 'He wasn't right'; he dug his orange trees out of his yard by the roots and had them destroyed without reason; he sold his property, all of it, except that he allowed his wife to keep her sewing machine, toaster, waffle iron and electric iron; he bought a baby grand piano for $1200.00 while his finances were at such a low ebb that he could not pay for it, and the Company had to take it back; he bought his wife expensive linens and silver without regard to cost; he abused his credit.

In December, 1944, he suddenly took his family to visit has wife's mother, in Wichita, Kansas. During this visit his actions were such that on Christmas day her mother ordered him out of the house, saying that he was crazy and that she was not going to have him around. Her mother had always liked him and their previous visits with her had always been pleasant, but on this occasion he found fault with the room they occupied, accused her mother of picking on the children and insisted that he wanted to occupy an apartment belonging to her mother and wanted her to turn the tenants out of it and turn it over to them.

When they left her mother's home they went to a tourist camp and stayed about ten days. He then announced to his wife that he was going to Hawaii. She tried to talk him out of this but he told her that he thought it would be best for him to be away from the family; that he was in the way, and of no use to them, since he couldn't make a living for them, and that he was going to get out. So he left for Hawaii, early in 1945, but was not able to do satisfactory work there. She did not hear anything from him for a while. He sent her some money, three checks, while he was there, and she finally received a cable from him saying that he was coming home. When he returned home he was not able to work at all and was confined to his bed.

At this point, on April 27, 1945, claimant wrote the carrier for any benefits he might be entitled to receive. This letter was answered by the carrier (Exhibit 4, T. 117) and further answered (Exhibit 8, T. 122).

In June of 1945 they returned to Florida and went to Inverness and took over a hunting and fishing lodge there. While there his mental condition grew worse; he would have periods of forgetfulness and did not seem to be able to think through on anything. He would say he was going to do one thing and would start it but would not stick to it and would start something else. At times he did not seem to know where he was and did not recognize her and the children. He was very nervous and would go into a rage over nothing. On one occasion a neighbor was going to take him to a meeting and the neighbor's child got sick and was threatened with pneumonia and the neighbor came over to explain why he could not take him to the meeting and his wife offered to go over and help with the child. After the neighbor left he accused her of doing everything she could to keep him from going to the meeting.

Although they had had to allow their insurance to lapse, as they were not able to pay the premiums, he told her that the only way he could see to provide for his family was for him to commit suicide in such a way that it would appear to be an accident, so that she could collect this insurance.

Mrs. Adams, a welfare worker, interviewed claimant about December 4, 1945, and observed that he had little coordination or motivation and was at a loss to know why he was in the city, and it was necessary to call someone to help get him back to his room. He was 'in a fog'; he walked with a cane; he was not able to carry on a very coherent interview; he was emotionally upset; he appeared unusually irritable; he appeared depressed mentally, extremely depressed; his judgment was not good; he wanted to do things on too large a scale, so that it was not reasonable.

About December 4 1945, claimant contacted Mr. Miller, of the Vocational Rehabilitation Service of the State Department of Education and thereafter worked out a program merely to keep claimant occupied so the...