Employers' Liability Assur. Corp. v. Francis , 1927 Tex. App. LEXIS 1104 ( 1927 )

LANE, J.

On the 9th day of August, 1924, appellee Victor Francis was in the employ of the Ford Motor Company, a subscriber under our Workmen’s Compensation Act (Vernon’s Ann. Civ. St. 1925, arts. 8306-8309). At said time said subscriber held a policy issued by the Employers’ Liability Assurance Corporation, Limited, of London, England, hereinafter, for convenience, referred to as the Assurance Company or appellant, whereby it indemnified said subscriber against all damages suffered by its employees by reason of personal injuries while in the course of their employment.

On said 9th day of August, Victor Francis suffered an injury while in the performance of his duties as such employee, and the next day thereafter informed his employer thereof, and on the 1st day of August, 1925, almost one year after his injury, for the first time filed claim with the Industrial Accident Board, asking for an award of compensation based upon his weekly wage of $35.

The Industrial Accident Board assumed jurisdiction of the claim, and on the 24th day of September, 1925, rendered its final ruling and decision on the claim, declaring:

“That the claimant has failed to establish to the satisfaction of the board that he suffered any injury whatever at the time and on the occasion of which he complains, and therefore his claim for compensation must be and the same is denied and refused.”

By said ruling the Assurance Company was discharged from any liability on account of said claim. Within 20 days from the date of such ruling, claimant notified the Accident Board, in writing, that he would not abide by such ruling and decision, and would file suit for a review thereof.

On the 1st day of October, 1925, Victor Francis, the claimant, and his attorney, Gordon O. McGehee, filed this suit against the Assurance Company to set aside the ruling and decision of the Accident Board. Citation was issued on the 2d day of October, 1925, and was duly served on the Assurance Company- on the 14th day of said month. The Assurance Company answered on the 19th day of October of said year by plea of general demurrer and general denial. That part of the plaintiff’s petition relating to the time and manner of filing the claim with the Industrial Accident Board, to which the defendant’s general demurrer is addressed, is as follows:

“That immediately after said injuries, plaintiff reported same to his employer, and also duly and in due form prepared and filed his proof of claim and notice of injury to the Industrial Accident Board, at Austin, Tex., and furnished duplicates thereof to the defendant, and thereafter placed his claim for compensation under the Workmen's Compensation Act before the Industrial Accident Board, at Austin, Tex.”

The cause was submitted to a jury upon special issues, in answer to which the jury found: That Victor Francis sustained an accidental injury on August 9, 1924, by reason of which he was partially incapacitated; that such incapacity was to the extent of 59 per cent.; that such injury was permanent; that the plaintiffs had shown good cause for failure to file the claim of Francis for compensation with the Industrial Accident Board within 6 months from the time of the occurrence of the injury complained of.

Upon the answers of the jury to such issues and the evidence, the court rendered judgment in favor of the plaintiffs for compensation due Francis for 248 weeks,, at the rate of $8.65 per week. The judgment decreed that the amount adjudged to be paid weekly should be proportioned and paid $5.75 to' Victor Francis and $2.88 to his attorney, McGehee. The Assurance Company has appealed.

Appellant insists, first, that the court-erred in not sustaining its general demurrer to the plaintiff’s petition, in that it is not alleged therein that the claim for compensation -was filed with the Industrial Accident Board within 6 months from the date of the acci"dent or that good cause existed for not so ■filing same; and that in the absence of such allegations the jurisdiction of the Accident Board to pass upon such claim was not shown.

As we have already shown, it is alleged in the petition that plaintiffs “úuty anú m Wwe form” filed this proof of claim and notice of the injury to Francis with the Accident Board, and furnished a duplicate thereof to the defendant, and thereafter placed their claim for compensation under the Workmens Compensation Act before the Industrial Accident Board.

The law as it stood at the time of the accident (article 8307, § 4a) provides that unless a claim for compensation with respect to such injury shall have been made within 6 months after the occurrence of same, no proceeding for compensation for such injury under the act shall be maintained. Provided, that for good cause the Accident Board may, in meritorious cases, waive strict compliance with the foregoing limitation as to notice and the filing of the claim before the board.

We have reached the conclusion, not without some doubt, however, that, in the absence of a special exception being addressed to the petition, the allegation that the claim was duly and in due form prepared and filed with the Accident Board should be held to he equivalent to an allegation that the claim was filed within the time required by law, without the necessity of setting out the facts showing good cause for not having filed the claim within 6 months after the occurrence of the accident or injury, and that such allegation was sufficient to authorize the admission of evidence to prove that good cause did exist, authorizing the board to assume jurisdiction of the cause.

Appellant also insists that the court erred in not instructing a verdict in its favor, in that under section 5, pt. 2, of the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. 1925, art. 8307, § 5), the burden was upon appellees to prove that appellant had been served with notice within 20 days after the final decision of the Accident Board that appellees would not abide by such decision, and, there being no evidence that any such notice had been so served, no judgment could have been properly rendered against appellant.

We overrule the assignment. The undisputed evidence shows that the decision of the Accident Board was made September 25, 1925; that this suit was filed on the 1st day of October, 1925; and that appellant was served with citation in the suit on October 14, 1925, which was within 20 days after the decision of the board was made. Appellant filed its answer in the suit October 19, 1925.

The suit having been filed and service of citation had upon appellant within 20 days after the decision of the Accident Board was rendered, appellant had sufficient notice, under the law, of the refusal of appellees to abide by the decision of the board. Millers’ Indemnity Underwriters v. Lane (Tex. Civ. App.) 241 S. W. 1085; Harris v. Insurance Association (Tex. Civ. App.) 257 S. W. 998; North Beck Mining Co. v. Industrial Com., 58 Utah, 486, 200 P. 112.

In the case first cited it was said:

“The suit was filed in 12 days after the award was made, and that was sufficient notice to appellant; but, if it was not, appellant knew the suit would be brought, knew it was brought, waived issuance of citation and answered fully in the-case. Appellant will not be allowed to evade the liability it assumed for injuries resulting to the employed upon technicalities which have no semblance of right or justice to sustain them.”

We now come to a consideration of appellant’s contention that the undisputed evidence shows that the claim was not'filed with 'the Accident Board within 6 months after the occurrence of the injury, and that there was no evidence to show that good cause existed for not having filed the claim within such time; that, under such circumstances, - the claim was by the terms of the compensation statute barred when filed, unless it be shown that good cause existed for not having filed the same with the board within the . 6 months; that the finding of the jury that it was shown that good cause existed for the failure to file the claim with the Accident Board within 6 months was not supported by any evidence, but, to the contrary, the evidence' shows that no reason whatever is given for not having so filed the claim.

We think the contention last mentioned should be sustained. The evidence wholly fails to show any good reason why the claim was not filed within the 6 months’ period.

Victor Francis, the injured party, testified that he slipped and fell, and when he did so he felt something snap in the small of his ¡back which gave him an awful pain; that as he did not think he was badly injured, he returned to work the next day and on that day reported his injury to his employer; that he made such report so that the Assurance Company could have notice thereof; that he worked the day after the accident; that he worked off and on for practically a year, but not continuously, because he had a pain in the small of his back and running down his right leg; that he had limited motion in his leg to such extent that he could not take a long step; that he could not bend his right leg without it giving him pain; that he had Dr. Dawes to treat him in about a month after the injury, and that the treatment had continued from that time to the time he was giving his testimony; that his injury had been, to some extent, relieved, so that when he sat down awhile it did not give so much pain, but that at any time he did a little work it hurt him very bad; that by reason of such 'injury he could not work more than 3 days in a week; that such condition lasted practically 9 or 10 months; that he kept trying to work' because he had to support his family; that he had to quit work in July, 1925; that from the time of his injury to the time he quit work in July, his employ-. ers put him to doing the easiest jobs they could possibly give him, as the foreman did not think he could hold up; that at times the pain was so bad he could not work unless he stood straight or sat down.

Dr. Dawes testified as follows:

“I know the plaintiff in this suit. I have known him about a year and a half. I have been his family physician. Francis came to see me about an injury somewhere about September or October, 1924. I think it was about September, 1924. I made an examination of him at that time. I removed his clothing and examined him by looking at him, and having him go through certain motions,' and I had him bend forward, and he could hardly bend forward at all. There is a lateral curvature of the spine to the left. I would say about an inch at the lower end of the spine, that is, the right side is a little higher than the left. There is some tenderness or pressure along the top of the hip bone with a point along the lower part of the spine. There is limited motion of the right leg. There is pain on moving forward and sitting down. He cannot sit in one position very long. I asked him two or three times when he came to my office why he changed positions so as to sit on one hip or another. I think the condition I found him in would cause him to sit in that position. In my opinion, his injury or condition caused him to do that. I have seen him off and on from September or August, in 1924, to the present time. I saw him quite frequently the latter part of 1924 and for a part of 1925, and since that I have seen him every 2 or 3 months. His condition has been practically the same. When I examined him in August or September, 1924, in my opinion, he was unable to do anything except light work.”

This testimony shows clearly that appellant knew not -only of his own knowledge soon after his injury that it was a serious injury, but he had the treatment and advice of his doctor to that effect. The facts testified to by both Francis and his doctor fall far short of disclosing any fact or facts which couid reasonably have caused the injured party to delay the filing of his claim with the Accident Board beyond the 6 months’ period . prescribed by the law for such filing; to the contrary, the existence of such facts should, in all reason, have prompted him to have so filed his claim.

After a careful review of the entire record and the facts, we have reached the conclusion that the ease has been fully developed iit all its phases, and, in view of the fact that we have found no evidence tending to show that the injured jparty had good cause for not filing his claim with the Accident Board within 6 months after the occurrence of his injury, the judgment of the trial court is reversed and judgment is here rendered for appellant.

Reversed and rendered.