Russle L. Kersh, Appellant, v. the Travelers Insurance Company, Appellee, 250 F.2d 112 (5th Cir. 1957)

This is an appeal from a judgment in a Texas Workmen's Compensation suit. It was entered on a verdict directed for defendant on the ground that when, on February 8, 1956, sixteen months and twenty-eight days after his injury on September 10, 1954, he filed his claim with the Board, "good cause" did not exist as matter of law. It presents the single question whether plaintiff's testimony,¹  which was the only testimony on the "good cause" issue, was insufficient as matter of law to present an issue for the jury.

The basic principles controlling here have been many times stated by the Texas Courts and by this court. This Court, in the case of Wedel v. Indemnity Ins. Co. of North America, 239 F.2d 302, 305, citing many Texas cases,²  in considering the matter of good cause, thus set them forth:

"These principles as they and all of the other Texas cases dealing with the question state them may be thus briefly summarized: (1) A claim may be filed * * * within * * * six months. (2) When it is not filed within that period, good cause must * * * continue to the date when it is actually filed. (3) The term `good cause' for not filing is not defined in the statute but it has been uniformly held by the Courts of Texas that the test for its existence is that of ordinary prudence, that is whether the claimant prosecuted his claim with that degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances. (4) Whether he has used the degree of diligence required is ordinarily a question of fact to be determined by the jury or the trier of the facts. (5) When, however, the evidence * * * taken as strongly as it may * * * be taken in favor of plaintiff, admits as a matter of law of but one reasonable conclusion, which negatives good cause, the question of good cause, vel non is one of law for the court and not of fact for the jury, and plaintiff should be denied recovery."

In Consolidated Cas. Ins. Co. v. Perkins, cited in note 2, supra, a leading Texas case directly in point, the reason claimed was the reason given here, an alleged representation that someone else would in the future attend to filing the claim. The Supreme Court of Texas reversed both lower courts and rendered judgment for the insurance company. Holding that the defendant's motion for an instructed verdict should have been granted, the court said:

"Respondent advances the contention that the statement made by Mr. Buser that he would tell him when to file his claim, coupled with assurances that he would be returned to work, excused him from filing his claim until Oct. 5, 1951. In view of the record in the case, we hold, as a matter of law, that a mere promise by the employee's superior that at some time in the future he would be told when to file his claim does not constitute good cause for the failure to file the claim until Oct. 5, 1951. See Texas Indemnity Ins. Co. v. Cook, Tex.Civ.App., 87 S.W.2d 830, writ refused."

In Texas Employers v. Doss, cited in note 2 supra, under facts showing much less delay than here, a similar holding was made.

Upon these authorities, it is clear that, under the facts testified to by plaintiff in this case, the district judge was right in instructing a verdict, and his judgment must be affirmed.

Affirmed.

RIVES, Circuit Judge (dissenting).

The plaintiff testified that before he left Amarillo on January 4, 1955, he went to Mr. Stroup, representative of the Travelers Insurance Company, and received his assurance as follows:

"A. Well, I told him I got laid off out here and I was going back to Houston and go to a doctor down there and he told me it would be all right to go to my doctor down there and he would take care of it, the whole works; he would send the claim to the Accident Board in Austin and everything."

According to plaintiff's testimony, so far uncontradicted, after the six month limitation period had expired he wrote to Travelers pressing his claim, and thereafter Travelers sent a representative to discuss the claim with him. There was nothing to make him suspect that his claim had not been filed in accordance with Stroup's promise until about February 5, 1956, when he went to see a lawyer. Three days later the claim was filed. In a similar situation, a sixteen day delay in filing the claim has been held excusable. Texas Employees' Insurance Association v. Hudgins, Tex. Civ.App., 294 S.W.2d 446.

If the jury believed that Travelers' representative promised to file the claim and that plaintiff reasonably believed in good faith, from all of the negotiations, facts and circumstances known to him, that the claim had been filed within the six month period and such belief continued until within three days before the claim was actually filed, then, I would think that the jury could properly find "good cause" for failure to file the claim earlier. I, therefore, respectfully dissent.