The Texas Workmen's Compensation Law is an elective Act. In certain designated employments it is exclusive, governing employes and specifying compensation for injuries sustained in course of employment, provided the injuries are within the contemplation of the Act and the injured employe or his dependents comply with the terms thereof. An action for statutory compensation is not founded on tort but on an implied contract in which the Legislature has prescribed the terms and conditions upon which a claim for compensation may be recovered; and courts have frequently announced the sound and humane rule that such contract should be liberally construed with a view to accomplishing the beneficent purposes of the legislation. Any reasonable doubt that may arise as to the right of an injured employe to compensation, courts will solve in favor of that right.
The rights, duties and responsibilities are reciprocal. In case of injury, sec. 18a, Art. 8308 R.S., of the Act, provides that the employer upon securing a policy shall give notice to the Accident Board that he has contacted the association (insurance carrier) for payment of compensation for the employe's injuries. The association (insurance carrier) is required to make a similar report. Willful failure or refusal to report subjects the offender to a penalty. Secs. 19 and 20 provide for the giving of notice to all persons under contract of hire with the employer and persons with whom the employer is about to enter into contract of hire, which notice *Page 889 is essential to the employer's obtaining the exemptions of liability as provided in the Act. Sec. 3c, Art. 8306, provides that the notice required by secs. 19 and 20 is accomplished by the filing of the notice with the Industrial Accident Board, which will constitute notice to the employe. Secs. 3a and 3b of the Act provide that unless the employe gives notice to the employer that he declines to accept employment under the terms of the Act, he is bound by it and his rights are controlled thereby. Sec. 4a, Art. 8307, provides that such employe shall give notice of an injury to the association (insurance carrier) or subscriber (employer) within thirty days after the happening thereof and shall make claim for compensation to the Industrial Accident Board within six months after the occurrence of same; and further, for good cause, the board may in meritorious cases waive strict compliance with notice and the filing of the claim.
Thus it will be seen that the employe accepting employment under the terms of the Act voluntarily agrees that the provisions of the compensation law shall govern his dealings; that is, the law becomes a part of the contract of employment and where a compensation policy is written under the terms and provisions of the Act, its terms and provisions become binding upon all of the parties concerned. The statutory requirements as to all the notices, and the actions of the board, are of the essence of the contract, unless there be a waiver or estoppel; and, since all relevant statutes enter into and become a part of the insurance, they must be considered with reference to it. Courts should not by construction attempt to make a new contract for the parties.
From the language of the statute above set out, it is clear that an employe who is neither physically nor mentally incapacitated by his injury must file his claim for compensation with the Industrial Accident Board within six months after the occurrence of the injury, and if he omits to do so, recovery of compensation is precluded, unless he can show "good cause" for such delay. The duty to give notice and make claim within the time is mandatorily imposed on the employe; delay is fatal. While the statute authorizes the board for good cause to waive strict compliance with the requirements of notice and filing of claim, it wholly fails to define the term "good cause." Courts appear to agree that the employe must show that he has prosecuted his claim with that degree of diligence which would be exercised by a person of ordinary prudence in the same or similar circumstances. It follows, therefore, that when negligence or indifference is shown, the board, or the court on appeal, is duty bound to deny compensation.
In all such cases where "good cause" is an issue, the burden is upon the claimant to show that he was free of negligence or indifference from the time of his injuries to the very time he acted. Williamson v. Texas Indemnity Ins. Co., 127 Tex. 71, 90 S.W.2d 1088; Ocean Accident Guarantee Corp. v. Pruitt, Tex.Com.App., 58 S.W.2d 41; Holloway v. Texas Indemnity Ins. Co., Tex.Com.App., 40 S.W.2d 75; Maryland Casualty Co. v. Johnson, Tex. Civ. App. 87 S.W.2d 342, error dis.; Texas Employers' Ins. Ass'n v. Sitchler, Tex. Civ. App. 76 S.W.2d 145; Texas Employers' Ins. Ass'n v. McGehee, Tex. Civ. App. 75 S.W.2d 123. In the case at bar, as I interpret the record, the injured employe offered no sufficient cause for the long delay from February 8, 1943, date of the injury, to October 8, 1943, date of filing of his claim for compensation. Hence, as a matter of law, his claim is barred by the statute.
To sustain the issue of good cause, the claimant relied on his own testimony, corroborated by that of his wife, not supported or contradicted by any other evidence. He testified unequivocally that he had known since February 8, 1943, that he had a serious condition in his knee; that on February 12, his knee hurt him so badly that he reported to the first aid station maintained by his employer, and at that time his knee and leg "was swollen and turning blue around the joint"; that on February 15, he went to see a Dr. Bywaters who placed him in a hospital and next day put a cast on his leg from foot to hip, which remained thereon for about two weeks, and, when removed, his leg "was swollen twice the size it was"; that on March 6, he went back to see Dr. Bywaters who, upon examination of his condition, wrote a letter to his employer stating that he should be given work that would take him off his feet — "that he was not able to work on that job"; which resulted in his employer's placing him on a bench job on May 12. His leg was still swollen. This testimony is in line with his pleading in which he alleged that *Page 890 "total incapacity of the leg has existed since the date of the injury — 8th of February, 1943." Mrs. Beaupre testified that she also knew from the very day of the accident that Mr. Beaupre had a serious condition with his knee, and that she and her husband had treated and doctored his condition every day and night. In order that there may be no mistake about the testimony on which plaintiff relied, in the interest of fairness to the record, I quote literally the testimony:
Beaupre testified:
"Q. You have known since February 1943, that you had a serious condition with your knee, haven't you, Mr. Beaupre? A. Yes — Yes, serious — I knew from the pain.
"Q. You knew it was paining you and affecting your ability to get around? A. Yes, sir."
Mrs. Beaupre, claimant's wife, testified:
"Q. Mrs. Beaupre, on the night of February 8, 1943, when Mr. Beaupre came home from work, did you observe his knee? A. Yes, sir, I did.
"Q. Tell the jury what you saw and observed when you looked at his knee that evening? A. He came in and could hardly make it in the house * * * He just showed me his leg; it was bruised and swollen and I put epsom salts towels on it, and the next morning it was so stiff he could hardly walk; I did not think he would be able to go to work.
"Q. How badly swollen was it? A. Awfully bad.
"Q. Was it discolored? A. Yes, yellowish and bluish.
"Q. Mrs. Beaupre, had there been anything wrong with his knee before that? A. Not that I recall.
"Q. Was his knee all right when he left for work on the morning of February 8th? A. Yes, it was.
"Q. Did you continue to observe his knee? A. Yes, I had to treat it every night; I packed it with hot towels and liniment.
"Q. Did his knee appear to be stiff? A. Yes, he could not hardly get around at all; he had to sling his leg in walking.
"Q. Just go ahead and relate what happened and what you observed about his knee and how it affected him — A. He would come in suffering every night, and we could not give him any relief; it was stiff, he could not even go up and down steps.
"Q. Did that condition get worse? A. Yes, and the pain got worse; he could not hardly stand it. * * *
"Q. After Mr. Beaupre was injured did he wear anything on his knee? A. Yes.
"Q. What? A. A cast for two weeks clear to his hip, and then after that an elastic leg support until he was operated on.
"Q. When the cast was removed from the leg, will you describe his leg? A. It was still stiff and bruised around the knee — the knee cap was just about twice the size of an ordinary knee.
"Q. Did that swelling continue? A. Yes, a bag forming under his knee, it looked like it might be full of pus.
"Q. Did he complain of pain? A. He certainly did; he had to take rest medicine the doctor prescribed.
"Q. Do you remember when he started taking those? A. It was after he saw Dr. Bywaters.
"Q. How long did he continue taking them? A. Until he was operated on. * * *
"Q. What was the condition of Mr. Beaupre's knee when he came home from the hospital after the operation? A. Well, it was in a cast when he first came home and stayed there several weeks, but it was swollen and the doctor had to treat it, had to drain the fluid three times.
"Q. Where was that done? A. At the hospital.
"Q. All right; then after the cast was removed, what was the condition of his knee? A. It was still swollen and stiff and still was discolored slightly all around."
On this testimony the majority opinion seems to say that Beaupre did not know his condition from time of the accident until he saw Dr. Hurt in April of the year following, after his suit had been filed, due to the fact that he did not know his condition; hence excuse him from filing the claim before October 8, 1943.
The testimony in this case further shows that in February 1943, the claimant presented his claim for injuries to John Hancock Life Insurance Company, with whom he carried sick and general debility insurance; that he undertook to get that *Page 891 company to pay his expenses for treatment to his knee and leg and for an operation thereon; that after that company turned him down, on May 11, 1943, he had his first contact with Mr. Wilson, claim adjuster for the insurance carrier, who, he claims, agreed to take that matter up with appellant herein. The testimony further shows that throughout the summer of 1943, and even in his letter to the Industrial Accident Board, dated October 7, Beaupre was trying to get someone to pay for an operation — never sought compensation; that in his testimony he expressly branded as untrue the allegations in his petition that Wilson told him not to file a claim with the Industrial Accident Board.
Indeed, the jury found on submitted issues that Mr. Beaupre thought his injuries were not serious, resulting in his failure to file claim for compensation until October 8, 1943; and, it seems, the majority of this court underwrites that holding, notwithstanding Beaupre's testimony and that of his wife that they did know his serious condition all the time from date of injury to the time he filed his claim. In other words, the injured employe and his wife are thus found not to know what they were talking about. May a court so find, in fairness to the interest and purpose of the statute and in justice to the parties concerned, in view of the admitted facts in this case?
In Employers Liability Assur. Corp., Ltd., v. Crawford, Tex. Civ. App.149 S.W.2d 1005, 1006 (writ dis. correct judg.), the court, on facts strikingly similar as here, held:
"On the facts it is evident that the plaintiff showed no good cause for the long delay in filing his claim. Apparently he knew just as much about his alleged injury a few months after it happened, as he knows now. There was no evidence raising the issue of good cause. V.Ann.Civ.Stat., Art. 8307, sec. 4a; Petroleum Casualty Co. v. Dean, 132 Tex. 320,122 S.W.2d 1053."
See also Southern Security Co. v. Inabnit, Tex. Civ. App. 1 S.W.2d 412; Petroleum Casualty Co. v. Garrison, Tex. Civ. App. 174 S.W.2d 74, error refused. In Southern Security Co. v. Inabnit, supra, Judge Hickman, writing for the Eastland Court of Civil Appeals, announced the rule [1 S.W.2d 415]:
"The testimony of a party to a suit and admissions made by him must be construed as binding upon him, and not merely as raising issues of fact. His testimony is governed by different rules to those governing witnesses who are not parties." (Citing authorities).
Thus when Beaupre and his wife solemnly declared that he was seriously injured, and was totally and permanently disabled, for which he was awarded full compensation from the date of such injury, he may not be allowed to say that he did not know his condition was serious, and thus rely on the belief that his injury was trivial. If he believed it was trivial to sustain a plea of good cause, evidently such would not sustain the finding of permanent total disability from the date of the injury. His testimony should be given the weight and credibility that it deserves, and the finding be consistent therewith.
"A party cannot recover upon a theory which embraces existence of a set of facts which such party testifies unequivocally are not true." Clack v. Williams, Tex. Civ. App. 189 S.W.2d 503.
In Petroleum Casualty Co. v. Garrison, supra, on facts which I submit are similar to those here, to which I invite a reading, the court announced [174 S.W.2d 77]:
"The rule seems now well established by decisions of our Supreme Court that when no incapacity immediately follows the injury, good cause is shown as a matter of law for not filing claim up to the date incapacity begins, but where claim is filed more than six months (as here) after the original injury and incapacity has resulted it is necessary to show the existence of good cause during the period from the beginning of incapacity to the date the claim is filed." (Citing authorities.)
Thus it will be seen that Beaupre knew he had a serious condition with his knee in February 1943, immediately after the accident; hence he could not believe his injury was trivial. If it was trivial, then he cannot urge same as an excuse for his failure to file his claim during the period from February 8 to October 8, 1943. It is too plain for words that he was in one breath trying to swear for total and permanent disability compensation from the time of his injury; and in the next breath trying to swear for an excuse that his injury was trivial or that he believed such *Page 892 was the case; and, then, swearing that he was in a serious condition, evidenced by pain, swelling of his leg, disabled to perform the task of a laboring man, could not sleep or rest. Truly, "Consistency, thou art a jewel."
If, because of Dr. Carroll's advice, any excuse ever existed leading him to believe that his injuries were trivial, or Wilson advised him that he (Wilson) would take the matter up with his company, such was dispelled when Wilson, on September 23, told him that appellant "denied all liability on his claim." In Odom v. Indemnity Ins. Co., Tex. Civ. App.111 S.W.2d 1143 (writ dis.), authorities cited, the court holds that all of the period from date of accident (February 8, 1943) to date claim is filed (October 8, 1943) must be accounted for; that "good cause" must be a continuing condition; failure to account for time breaks or periods is fatal to the right of recovery. On the uncontroverted facts it is evident that plaintiff at no time showed good cause for the delay in filing his claim. The filing being jurisdictional (Holloway v. Texas Indemnity Co., Tex.Com.App., 40 S.W.2d 75; Ocean Accident Guarantee Co. v. Pruitt, Tex.Com.App., 58 S.W.2d 41; Petroleum Casualty Co. v. Dean, 132 Tex. 320,122 S.W.2d 1053), this cause should be reversed.
Furthermore, the alleged accident happened, if it did happen, on February 8, 1943. The board made its award on February 1, 1944. Suit to set aside the award was filed on February 28, 1944, and the operation performed April 27, 1944. The item of $293.50 is not recoverable. Art. 8306, sees. 7 and 12e; Lumbermen's Reciprocal Ass'n v. Wilmoth, Tex.Com.App., 12 S.W.2d 972; Indemnity Ins. Co. v. Garsee, Tex. Civ. App. 54 S.W.2d 817; Maryland Casualty Co. v. Merchant, Tex. Civ. App.81 S.W.2d 794; Federal Underwriters Exchange v. Brigham, Tex. Civ. App.184 S.W.2d 849. These items of expense were incurred over 14 months after the accident. No claim was ever presented to the Industrial Accident Board. In all cases cited by the majority, the expense accounts were before the board and passed on by the board.
For the errors presented, the judgment should be reversed and here rendered for appellant; or, at least, reversed and remanded to the court below for a new trial. I respectfully dissent from the majority.