On Motion for Rehearing
After delivery of the original opinion herein on July 19, 1960, this court became aware of the case of Second Injury Fund v. Guidry, Tex.Civ.App., 336 S.W.2d 785, when the opinion in that case was published in the Southwestern Reporter’s advance sheet. Both cases had several common questions. Application for writ of error was made to the Supreme Court, and was pending in the Guidry case when time for action on the Industrial Accident Board’s Motion for Rehearing matured in this case. It was deemed desirable to await the Supreme Court’s disposition of the Guidry appeal, as it appeared that several of the common questions vital to disposition of the appeal in each one would probably be determined in the Guidry action. The parties to this case were so notified. The Supreme Court has now rendered its decision in the Guidry case. See Industrial Acc. Bd. v. Guidry, Tex., 345 S.W.2d 509; Motion for Rehearing overruled the 10th day of May, 1961.
In its Motion for Rehearing the Industrial Accident Board takes the position that the decision to reverse and remand the trial *194court judgment herein rests upon 9 basic errors. Two of the points justify discussion and clarification. One of these two points is that this court ignores the rule that good cause must exist until the claim is actually filed for failure to claim compensation within six months as required by Art. 8307, Sec. 4a. The rule is stated in Petroleum Casualty Company v. Dean, 132 Tex. 320, 122 S.W.2d 1053, op. adopt. The other point is that the case should not be reversed to allow the appel-lees to plead good cause for failure to give notice and make claim when that question was not before the trial court initially.
The appellee’s son wrote the Industrial Accident Board in behalf of his father on April 10, 1958, and stated a representative of the compensation insurer had suggested an inquiry about a “second accident fund”. The Board’s reply of April 14 gave a brief résumé of the second injury fund’s function, and asked to be advised whether or not Mr. Parker had collected compensation for the loss of his left arm, and asked that the Board be furnished with a current medical report describing Mr. Parker’s condition as the result of the September 3, 1957 injury, stating that after receipt of the requested information the Board would advise Mr. Parker further regarding his eligibility for benefits from the second injury fund.
Replying to the Board on April 30, the Parkers forwarded a medical report, and advised that no compensation was collected as the result of the arm loss. May 1st the Board responded to this last Parker letter by acknowledging receipt of it and the medical report, and stated, “As soon as the insurance carrier has completed payment of compensation for the injury received on September 3, 1957, we should be notified, so that we can consider your Father’s claim for additional benefits from the Second Injury Fund. * * * By way of explanation, the Second Injury Fund’s liability does not commence until all benefits have been paid for the injury received during the course of employment.” (Emphasis added.) The claim against the insurance carrier for compensation attributable to the accident of September 3, 1957 was settled August 20th, and the settlement approved by the Board August 22, 1958; thereafter Parker’s claim against the Second Injury Fund in affidavit form dated September 30 was received by the Board October 1, 1958.
The Board’s letter of May 1st indicates that the Board did in fact treat Parker’s letter of April 10 as a notice of claim against the Second Injury Fund, and considered the claim to be before the Board subject to determination when the claim against the compensation insurer for the injury of September 3rd had been paid. In addition it may be assumed without so holding in the absence of all relevant facts, that the statement in the Board’s letter of the time in which consideration would be given to the claim against the Second Injury Fund is Board policy, and its advice as to when a claim would be considered, could constitute a waiver of the timely filing of a prescribed claim form. Parker should not be required to use more diligence in the prosecution of his claim for compensation against the Second Injury Fund than an ordinarily prudent person acting under the same or similar circumstances would exercise in the transaction of his own business. Such is the rule in a claim against an insurance carrier. See Texas Indemnity Ins. Co. v. Cook, Tex.Civ.App., 87 S.W.2d 830, er. ref.
In the original opinion this court expressed the view that timely notice of the September 3, 1957 injury was given insofar as it affected Parker’s claim against the Second Injury Fund. It was thought that such notice was sufficient under Art. 8307, Sec. 4a, because Section 4a only requires notice of the injury to the association or subscriber within 30 days after injury. The 30 day notice provision does not require that notice of a claim for compensation be made within the 30 day limit. The notice required is confined to injury. However, in the Guidry case it is said [345 S. W.2d 511]:
*195“The contention is made, however, that under Section 4a, Article 8307, supra, a claimant who seeks to recover benefits from the Second Injury Fund on account of the combined effects of a prior noncompensable injury * * * must put the Board on notice within thirty days after the occurrence of the second injury that he is claiming benefits from the Second Injury Fund and likewise must file formal claim for benefits against the Second Injury Fund within six months from the date of his compensable or second injury. We agree with this contention.”
And again in the next to last paragraph of the Supreme Court’s opinion it is said:
“ * * * To deny the Board the right to notice within thirty days after the accident that a claim against the Second Injury Fund was to be asserted, as well as the claim against the insurance carrier, would deprive the Board of the valuable right of making an immediate investigation of the facts upon which the employee based his claim for compensation from the Second Injury Fund.”
The Supreme Court having concluded that the notice of injury within 30 days of the happening of the second injury and notice of a claim against the Second Injury Fund must be asserted in like time does not materially change the situation presented by this record. It merely requires that it be pointed out that if ignorance of the existence of the Second Injury Fund and its liability for additional compensation constitutes good cause for failure to file a claim for benefits within six months of the date of the second injury, the same facts would excuse failure to give notice of an injury and indicated a claim against the Fund within 30 days.
In the original opinion the view was expressed that justice required that the case be reversed and remanded rather than rendered because the record indicated that ■if the evidence was fully-developed, good cause for failure to give the notice and assert the claims within the time required by Art. 8307, Sec. 4a might be shown. The Board’s point challenges this disposition of the case.
The only serious doubt that can arise in this connection is whether or not pleading good cause would be the assertion of a new or different cause of action or merely an amendment to fully state the nature of the action already plead. It is thought that such pleading would constitute a permissible amendment. The case is ordered reversed and remanded by authority of Rule 434, Vernon’s Texas Rules of Civil Procedure; Williams v. Safety Casualty Company, 129 Tex. 184, 102 S.W.2d 178, op. adopt.; Plicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846; Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792; London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619; Turner v. Texas Company, 138 Tex. 380, 159 S.W.2d 112; Citizen’s Bank v. Terrell, 78 Tex. 450, 14 S.W. 1003.
The Industrial Accident Board’s motion for rehearing is respectfully overruled.