Texas Employers' Ins. Ass'n v. Clark

On Rehearing.

• Since our original opinion was handed down in this case there has been published an opinion' by the Court of Civil Appeals of the Second District in the case of Zurich General Accident & Liability Ins. Co., Ltd., v. Walker, 21 S.W.(2d) 334, 340 , in which was involved a construction of article 8306, § 3c, Rev., St. 1925. A writ of error has been granted by the Supreme Court in that case, and our information is that the writ was 'granted on the holding that “the employee was not derelict in failing to give notice to (he employer of his injury until he had been given written notice by the employer that he was a subscriber.” The granting of the writ raises a question as to whether the Supreme Court will approve that holding. However, we do not think the granting of the writ in that ease has any particular bearing on the construction which, we gave in our original opinion of this article. We did not hold, as was held in that case, that the injured employee was not derelict in failing to give notice until he had been given written notice by the employer that the employer was a subscriber. Our holding on that point was merely that the lack of knowledge on the part of the employee that his employer was a subscriber was one of the facts which might be considered by the jury, in connection with other facts, in determining whether a good cause was shown for the employee’s failure to give notice and file a claim within the statutory time.

In this case the jury determined, in answer to special issues Nos. 5 and 6 in the court’s main charge, that a good cause was shown for the failure to give notice and make application for compensation within the statutory time. The court also gave in charge to the jury certain special issues requested by the plaintiff below, appellee here. In answer to plaintiff’s special issue No. 1, the jury determined that one of the reasons why plaintiff failed to give notice of his injury within the statutory time was because he did not know that his employer carried compensation insurance. In answer to plaintiff’s special *411 issue No. 2, a like determination was made on his failure to file claim for compensation within the statutory time. By its answer to plaintiff’s special issue No. 2 the jury determined that one of the reasons why: plaintiff failed to give notice of his injury within the statutory time was that he thought his injuries were temporary, not serious^ and would soon subside. In the next special issue the jury determined the same fact with reference to his failure to file his claim for compensation. In answer to the next two issues requested by plaintiff the jury determined that one of the reasons why plaintiff did not notify his employer of his injuries or make application to the Industrial Accident Board for compensation within the statutory time after July 7, 1927, was because he was physically and mentally incapacitated to do so. His belief that his injuries were not serious would certainly afford a good cause for not giving notice and filing his claim up to July 7th. The jury having found that he was physically and mentally incapacitated to give notice after that day would certainly afford good ground for not doing so from and after that date.

Viewing the question in this light, we do not think the case should be reversed and remanded for a new trial, even though we might be in error in our construction of the article above named, and even though the want of knowledge on the part of the employee would not, within itself,' constitute a good cause for not giving notice and filing claim for compensation within the statutory time.

In appellant’s brief an argument was contained to the effect that the failure of Grisham Bros., attorneys for appellee, to give notice and file claim after they were employed by appellee’s wife to bring a, suit for damages against appellee’s employer, Arkansas Fuel Oil Company, should be imputed to appellee. We did not discuss this question in our original opinion, and it is insisted that we dispose of this argument in our opinion on rehearing. The facts are that appellee was stricken with paralysis, and, while he was in a very serious and helpless condition, his wife employed Grisham Bros., a firm of lawyers composed of R. N. Grisham and J. S. Grisham, to institute a suit for damages against the employer, stating to said attorneys that the employer did not carry compensation insurance. The attorneys were not employed to collect compensation insurance, but were employed to bring a suit for damages. We do not know what connection with, or knowledge of, this employment the appel-lee himself had. We know of no statute or rule of law which would charge these attorneys with the duty of making an investigation of the question of whether or not appellee’s employer carried compensation insurance, and impute their failure to do so to appellee. They were not employed for that purpose, and in no sense were they his -attorneys and representatives, save only as they might have had authority to bring a suit for damages on account of their employment by his wife. It would, we think, be a strange rule that would relieve an injured employee from the duty of giving notice during his incapacity, and at the same time charge him with the failure of his wife and attorney employed by her to do so. If he personally is relieved of the duty during incapacity to give notice and file a claim, he cannot be charged with the duty of doing so through his wife or through attorneys employed by her.

The motion for rehearing will be overruled.