I believe that the trial court erred in admitting evidence as to the statements made to appellee by the women in the personnel office of the employer.
The good cause allegations are all found in the tenth numbered paragraph of appellee's pleading. In the opening sentence *Page 544 appellee alleges that he filed his claim for compensation within six months after the date of the injury in the way and manner provided by law. In the second sentence of the paragraph he alleges, in the alternative, that good cause existed for failure to file his claim within the required time and up until he did file claim, to quote, "for the reason that he was not apprised of the cause of his loss of vision until immediately prior to the time he filed said claim and gave said notice." The third sentence begins with the words, "In this connection he alleges", and proceeds in several clauses, separated by semi-colons, to allege that the physicians told appellee that they could not find the cause of the loss of vision, that he believed them, etc. In the middle of this long sentence is found the clause, "he was advised that the compensation carrier was not liable for such loss of vision." The long sentence is concluded with this summary, "that said representations made by said physicians — together with the lack of knowledge on the part of the defendant as to the cause of said blindness — constituted a good cause for his failure to file said claim and make said notice up until the same was given and filed; that as soon as this defendant learned the cause, or probable cause, of the loss of vision, he immediately filed or caused a claim to be filed and notice of injury to be given." Thus, it is seen that in his opening sentence he avers that the reason for the delay in filing was the fact that he was not apprised of the cause of his loss of vision until immediately prior to the time he filed claim and gave notice of the injury. He begins the next sentence with the phrase, "In this connection", referring clearly, it seems to me, to what he had just said in the preceding sentence. He concludes the sentence by saying that the representations of the physicians, together with his own lack of knowledge as to the cause of his blindness, constituted good cause for the delay in filing, and that he filed his claim as soon as he learned the cause of his loss of vision. The paragraph then concludes with the following sentence:
"Plaintiff alleges that he was first advised about May 28, 1945, that there was a probable connection between the loss of vision and the strain or the working near the bright light as above alleged and that he immediately wrote to the Industrial Accident Board."
The conversation between appellee and the women in the employer's personnel department took place many weeks before the expiration of the six months period within which he was required to file claim for compensation, and several months before the claim was actually filed. Nowhere in appellee's pleading is it said that the remarks of these two women constituted good cause for failure to file the claim, either within six months or up to the time it was filed. It is not alleged when he learned of the falsity of their representations to him. Obviously, if the remarks of these two women had been relied on for good cause, then it would have been necessary to allege and prove that he did not learn of the falsity of their remarks until he actually filed his claim. When the allegations of good cause are examined in their entirety, it seems to me that they charge only that the physicians misstated to the appellee the cause of his loss of vision, and that as soon as he learned the cause of his loss of vision he filed claim.
It is elementary that a pleading must give fair notice of what the pleader expects to prove. I cannot believe that a lawyer of average experience, diligently representing a compensation carrier, would suppose on reading the pleading under discussion that the claimant would seek to establish as good cause for delay in filing his claim the fact that two women in the employer's personnel department told him, many months before he filed his claim, that he was not entitled to compensation.
When the record is examined as a whole, the error in admitting evidence of the matter, coupled with submission of issues about it to the jury, and the argument of counsel concerning it, was of such magnitude that I do not believe the case is a proper one for the application of Rule 434. *Page 545