General Accident Fire and Life Assurance Corporation, Ltd. v. J. J. Hardin ( 1961 )

JOHN R. BROWN, Circuit Judge.

The question here is whether the Judge’s finding is clearly erroneous, F.R. Civ.P. 52(a), 28 U.S.C.A., that the Claimant had good cause for failure to file his Texas workmen’s compensation claim after the expiration of the six-months’ period. Tex.Civ.Stat. art. 8307, § 4a.

There is no longer any dispute that an injury occurred and that notice of injury was given. Hardin was working as a welder for a construction company. While engaged in welding, he sustained an injury on July 4, 1957 when he was caused to raise his head suddenly. Wearing helmet and a welder’s protective shield as he was, this forced his safety helmet down on his head and neck. The doctor appearing as an expert in his behalf was of the opinion that as a result of this occurrence he had suffered an injury to the interver-tebral disc in the cervical area. The Insurer’s medical witness thought the narrowing of the space must have existed long prior to July 4. But nonetheless he acknowledged that the narrowing was present indicating nerve root damage of a kind consistent with the patient’s history and complaint of pain and disability. He was also of the view that an accident of the type described by Hardin could have caused this condition.

Claim for compensation was not, however, filed within six months. The claim was not filed until March 1958. Hardin’s theory justifying delay was his genuine belief, fortified by a like opinion from his chiropractor, that his injuries were not serious and were trivial in nature.

We are told in the briefs that there are over 200 Texas cases construing good cause. We have dealt with the problem a number of times ourselves. Wedel v. Indemnity Insurance Co. of North America, 5 Cir., 1957, 239 F.2d 302; Fortenberry v. Maryland Casualty Company, 5 Cir., 1957, 247 F.2d 702; American Motorists Insurance Co. v. Boortz, 5 Cir., 1952, 197 F.2d 900; Aetna Casualty & Surety Co. v. Rhine, 5 Cir., 1945, 152 F.2d 368; Maryland Casualty Co. v. Cobb, 5 Cir., 1942, 131 F.2d 603; Mayers v. Associated Indemnity Corp., 5 Cir., 1939, 108 F.2d 89. There is no reason here to add to this bulk by an extended discussion of these principles. They were well summarized in Wedel v. Indemnity Insurance Co. of North America, supra, and painstakingly applied in Fortenberry v. Maryland Casualty Company, supra. Of course we are dealing with Texas law and we must, and do, take our lead from the authoritative decisions of the Texas Courts.

The Texas law has not varied for the 12 years between Hawkins v. Safety Casualty Co., 1948, 146 Tex. 381, 207 S.W.2d 370, and Texas Casualty Insurance Company v. Crawford, Tex.Civ. App.1960, 340 S.W.2d 110. The Hawkins case, in the plainest of terms, declared that the “ * * * law is well settled that a bona fide belief of a claimant that his injuries are not serious but trivial is sufficient to constitute good cause for delay in filing a claim. It also has been held a number of times that the advice of a physician, upon whom a claimant relies, that injuries are not of a serious nature, but are temporary or trivial, is sufficient to justify a claimant’s delay until he learns, or by the use of reasonable diligence should have learned, that his injuries are serious. * * * ” 207 S.W.2d 370, at page 372. Neither the intervening years nor the flood of precedents have introduced any qualifications. For in almost identical words, Crawford now states, “We believe the law is well settled that a bona fide belief of a claimant that injuries are not serious is sufficient to constitute good cause for delay.” 340 S.W.2d 110, at pages 112-113; see also Employers Reinsurance Corp. v. Ingram, Tex.Civ. App.1960, 340 S.W.2d 848, at page 850 (error ref. n. r. e.).

Likewise, reliance by the Claimant upon advice of a physician may afford a basis in itself. “Advice from a physician that his injuries are not serious constitutes good cause for failure to file a claim within the prescribed time, provided the claimant, in the exercise of ordinary care, believes and relies upon that advice.” Harkey v. Texas Employers’ Insurance Association, 1948, 146 Tex. 504, 208 S.W.2d 919, at page 922; Consolidated Underwriters v. Pruitt, Tex.Civ.App.1944, 180 S.W.2d 461, at page 464 (error ref. w. o. m.).

Of course under any such unavoidably "broad standard, the results vary according to the facts. In some the question is one of fact for the fact-trier. In others the facts are of such a nature as to compel a direction of a verdict or a non-jury finding as a matter of law. See, e. g., Fortenberry v. Maryland Casualty Co., 5 Cir., 1957, 247 F.2d 702; Driver v. Texas Employers’ Insurance Association, Tex.Civ.App.1953, 266 S.W.2d 401, .at page 403 (error ref. n. r. e.); Texas Employers’ Insurance Association v. Portley, 1953, 153 Tex. 62, 263 S.W.2d 247, at page 250; Mayers v. Associated Indemnity Corp., 5 Cir., 1939, 108 F.2d 89, at page 90; General Accident Fire & Life Assurance Corp. v. Martin, Tex.Civ. App.1937, 110 S.W.2d 258, at page 260.

The circumstances of this record were sufficient to warrant the Judge drawing the inference that Hardin in good faith thought his injuries were trivial, not serious. A strong factor, consistent with that belief, was his continued employment with no time lost. He continued to work for the Texas ■employer until the job was completed. He then went to California where he .shortly obtained employment with anoth■er concern. He continued in that work until the time the claim was actually filed. It is true that following the injury he went to a chiropractor in Texas who gave him a few treatments. Later on in November while in California his neck started to give him some pain, so he wrote the chiropractor. The substance of the chiropractor’s brief advice received some time in January 1958 was that if Hardin would take some treatments from local chiropractors it would clear up. The existence of pain and discomfort while certainly a factor in the total picture of evaluating compliance with the standard of reasonable prudence is not decisive. The Texas law recognizes that “while 'x" * * belief continues * * * ” in good faith that injuries are not serious “ * * * the fact that almost constant pain exists does not affect the issue; since pain and suffering are not compensable * * Harkey v. Texas Employers’ Insurance Association, 1948, 146 Tex. 504, 208 S.W.2d 919, at page 922. Following the receipt of this postcard advice from his former chiropractor in Texas, he obtained a few treatments in California. But all the while he continued working on his job. In March he could see that the injuries were not trivial and that they were not clearing up as the chiropractor had predicted. Immediately he filed his written claim for compensation. Thei-e was thus no interval between the realization that the injuries were not, as formerly supposed, trivial and the time of filing. American Motorists Insurance Co. v. Boortz, 5 Cir., 1952, 197 F.2d 900, at page 901, note 1; and Wedel v. Indemnity Insurance Co. of North America, 5 Cir., 1957, 239 F.2d 302, at page 306.

The Judge hearing and seeing the witnesses, including the plaintiff Hardin, concluded that the facts met the Texas test that “ * * * delay may not be excused unless the belief that the injury or condition was not serious would have been entertained by a reasonably prudent person in the same or similar circumstances. * * Texas Employers’ Insurance Association v. Port-ley, 1953, 153 Tex. 62, 263 S.W.2d 247, at page 250. Acknowledged ignorance by Hardin that the law required a claim within six months did not foreclose the court from reaching the conclusion it did. Lack of knowledge of the law is not good cause, Petroleum Casualty Co. v. Dean, Tex.Com.App.1939, 132 Tex. 320, 122 S.W.2d 1053, at page 1056, but application of the Hawkins principle is not limited to those who are both tardy and know the filing requirements of the Act.

Whatever we might have done were the fact decision ours, we do not think that this record is such that we are left with the conviction that the Judge’s decision was contrary to the truth and right of the case. F.R.Civ.P. 52(a). United States v. Yellow Cab Co. 1949, 338 U.S. 338, 341, 70 S.Ct. 177, 94 L.Ed. 150; United States v. Kaplan, 5 Cir, 1960, 277 F.2d 405, 408; Sanders v. Leech, 5 Cir, 1946, 158 F.2d 486, 487. Affirmed.