Travelers Ins. Co. v. Price

• Decision Date: 13 June 1940
• Docket Number: No. 9120.,9120.
• Citation: 111 F.2d 776
• Parties: TRAVELERS INS. CO. v. PRICE et al. PRICE et al. v. TRAVELERS INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

111 F.2d 776 (1940)

TRAVELERS INS. CO. v. PRICE et al. PRICE et al. v. TRAVELERS INS. CO.

No. 9120.

Circuit Court of Appeals, Fifth Circuit.

May 15, 1940.

Rehearing Denied June 13, 1940.

Pinkney Grissom, of Dallas, Tex., for Travelers Ins. Co.

L. E. Elliott and H. A. Bateman, both of Dallas, Tex., for Evelynn Price et al.

Before FOSTER, SIBLEY, and McCORD, Circuit Judges.

FOSTER, Circuit Judge.

Mrs. Evelynn Price brought this suit against Travelers Insurance Company, on behalf of herself and her two minor children, to recover compensation under the Workmen's Compensation Laws of Texas, Vernon's Ann.Civ.St.Tex. art. 8306 et seq., for the death of John J. Ogden, her former husband and father of the two children. After a verdict for plaintiff judgment was entered in her favor.

The following facts appear from the record: Appellee was living with Ogden in Colorado in 1924. He was not employed and left her to seek work elsewhere. He went to Texas and she heard nothing more from him. She worked in Denver in menial positions to earn money to support herself and children and finally went to Grant, Nebraska, for the same purpose. On going to Texas, Ogden concealed his marital status and married a girl, Lottie Self, 18 years of age. The marriage was in form legal and the girl was in good faith. He secured employment in Dallas with Babcock & Wilcox Co., which was a subscriber to the Texas Workmen's Compensation Law, with the Travelers Insurance Company as insurer. In the course of his employment he was injured, and died on November 9, 1926. His putative wife filed claim for compensation on behalf of herself and two minor children. This was allowed, at the rate of $20 per week, for 360 weeks and was paid by appellant. Appellee was notified of Ogden's death but although she made inquiry she was unable to learn any of the details. Subsequently she married her second husband, Price. In the autumn of 1937 she visited her former husband's parents in Colorado and then learned that her husband had married another woman, who had received some insurance on account of his death. She promptly engaged lawyers and took steps to ascertain the facts. She filed claim with the Industrial Accident Board on January 15, 1938. It was rejected. We refer to an opinion of the District Court for a statement of the facts more in detail and for a comprehensive review of the law. 25 F. Supp. 894.

Under the law of Texas a beneficiary of industrial compensation must file claim within six months after the accident with the Industrial Accident Board but they may in their discretion waive the limitation if good reason for the delay is shown. There is no other statute of limitation that would bar the claim. The action of the Board is reviewable by a court of competent jurisdiction. In this case the delay was eleven years. The District Judge submitted the case to the jury to find whether there was reasonable cause for the delay. We are not advised of any case where there has been such great delay but good cause is rather an elastic term and the following cases may be referred to as somewhat analogous. In Texas Employers' Ins. Ass'n v. McGrady, Tex.Civ.App., 296 S.W. 920 a delay of more than a year was excused on the...