Continental Casualty Co. v. Abercrombie

413 S.W.2d 409, 1967 Tex. App. LEXIS 1996
CourtCourt of Appeals of Texas
DecidedMarch 23, 1967
DocketNo. 275
StatusPublished
Cited by3 cases

This text of 413 S.W.2d 409 (Continental Casualty Co. v. Abercrombie) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Casualty Co. v. Abercrombie, 413 S.W.2d 409, 1967 Tex. App. LEXIS 1996 (Tex. Ct. App. 1967).

Opinion

SELLERS, Justice.

Appellee brought this suit against appellant to recover for personal injuries received by appellee while he was an employee of United Gas Company. The claim is brought under the Workmen’s Compensation law of Texas.

The alleged injury occurred at Tatum on February 1, 1962, and the foreman of the ■crew was present and saw the accident when it happened, or at least helped to get the pipe off the appellee when he fell un•der the same.

Appellant on this appeal seeks to defeat recovery by appellee on the ground that ap-pellee did not file a claim with the Industrial Accident Board within the time required by law and did not offer evidence ■sufficient to show good cause for not so ■doing.

The case was tried to a jury and the jury found good cause existed as follows:

“SPECIAL ISSUE NO. 14:
“Do you find from a preponderance of the evidence that Walter Abercrombie believed that one or more of his supervisors had filed for him a claim for compensation with the Industrial Accident Board?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 14 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE No. 14-A:
“Do you find from a preponderance of the evidence that such belief, if any you have found, continued up until the time that Walter Abercrombie’s claim for compensation was filed with the Industrial Accident Board?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 14-A ‘Yes’ and only in that event, then answer the following special issue.
“SPECIAL ISSUE NO. IS:
“Do you find from a preponderance of the evidence that such belief on the part of Walter Abercrombie, if any you have found, constituted good cause as that term is defined herein for his failure to file his claim with the Industrial Accident Board until the time the same was filed ?
“Answer Yes or No.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 16:
“Do you find from a preponderance of the evidence that Virgil Alder represented to Walter Abercrombie that he would file for him such claims and re[411]*411ports as might be necessary to establish his claim for workmen’s compensation ?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 16 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 17:
“Do you find from a preponderance of the evidence that Walter Abercrombie relied upon such representations, if any you have found, in failing to file his claim for compensation with the Industrial Accident Board up until the time the same was filed ?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 17 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 18:
“Do you find from a preponderance of the evidence that such reliance by Walter Abercrombie upon the representations of Virgil Alder, if you have so found, constituted good cause, as that term is defined herein, for his failure to file his claim with the Industrial Accident Board up until the time the same was filed?
“Answer Yes or No.
“ANSWER: Yes.
“SPECIAL ISSUE NO. 19:
“Do you find from a preponderance of the evidence that one or more of Walter Abercrombie’s supervisors represented to him that they would file for him such claims or reports as might be necessary to establish his claim for workmen’s compensation ?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 19 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 20:
“Do you find from a preponderance of the evidence that Walter Abercrombie relied upon such representations, if any you have found, in failing to file his claim for compensation with the Industrial Accident Board up until the time such claim was filed?
“Answer Yes or No.
“ANSWER: Yes.
“If you have answered Special Issue No. 20 ‘Yes’ and in that event only, then answer the following special issue.
“SPECIAL ISSUE NO. 21
“Do you find from a preponderance of the evidence that such reliance on the part of Walter Abercrombie, if you have so found, upon such representations, if any, constituted good cause, as that term is defined herein, for his failure to file his claim for compensation with the Industrial Accident Board up until such claim was filed?
“Answer Yes or No.
“ANSWER: Yes.
Appellee testified as follows:
* * *
“Q Now, I will ask you this, did you finally decide that they weren’t going to do anything about it?
A Yes, sir.
Q When you decided that I will ask you whether or not you came to see us as lawyers to see about your rights?
A Yes, sir.
Q Now, I will ask you, Walter, if all this time from the time you were injured up until the time you came to see us, did you believe that your supervisors [412]*412for United had taken care of any filings or reports that were necessary for you to get compensation?
A Yes, sir, I believed it.
Q And you depended on them doing it ?
A Yes, sir.
Q And when wou came to see us was that or not the first time you ever knew that they hadn’t done it and you had to do something yourself ?
A That’s right.
Q And did you then ask us to do that for you?
A Yes, sir.
* # ⅜ »

From the record as a whole, we are of the opinion that the evidence is sufficient to sustain the jury’s finding that good cause existed for not filing his claim for compensation within the six months required by law. The jury had a right to consider the fact that appellee could not read or write and had never been to school in passing upon the issue of good cause. Green v.

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413 S.W.2d 409, 1967 Tex. App. LEXIS 1996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-casualty-co-v-abercrombie-texapp-1967.