Supreme Court of Texas.
TEXAS INDEMNITY INS. CO.
May 5, 1948.
Attorneys & Firms
*41 **990 Kennedy & Granberry, of Crockett, Gallagher, Francis & Bean and Ralph Gillen, all of Dallas, for petitioner.
Turner, Rodgers, Winn & Scurlock, George Terry and Lon Sailers, all of Dallas, for respondents.
This suit was brought by Alvin F. Watson as an appeal from a decision of the Industrial Accident Board denying his claim for workmen’s compensation. Watson alleged that he was totally and permanently disabled as a result of a heatstroke suffered by him on or about May 30, 1945, while working for Stanolind Oil & Gas Company, whose workmen’s compensation insurance was carried by Texas Indemnity Insurance Company. His claim for compensation was filed with the Industrial Accident Board on March 15, 1946. In answer to special issues the jury found that Watson sustained the injury alleged, and that the injury totally and permanently disabled him. The jury also found that good cause existed for Watson’s failure to file his claim prior to March 15, 1946, and specifically that his mental incapacity was good cause for this delay. The trial court rendered a ‘lump sum’ judgment in favor of Watson for $7,246.73. The Court of Civil Appeals reversed this judgment on the ground that there was no evidence to support the jury’s findings on good cause, and rendered judgment for the insurance company. Tex.Civ.App., 207 S.W.2d 99.
Watson urges that the company failed to join issue on good cause since the verified denial contained in an amendment to the company’s answer was filed only the day before the trial began, and he further insists that the answer did not contain an adequate denial of good cause. The rule provides that an allegation of good cause shall be presumed to be true unless denied by verified pleadings and that an amended pleading denying this matter must be filed not less than seven days before trial. Rule 93(n), Texas Rules of Civil Procedure. The Court of Civil Appeals overruled this contention, correctly reasoning that Watson had waived these points. This holding approved.
But the Court of Civil Appeals erred in ruling that the evidence conclusively demonstrated that Watson did not have good cause for failing to file his claim with the Industrial Accident Board within six months after his injury, as the statute requires. *43 This measure (R.S., art. 8307, sec. 4a) reads in part: ‘* * * No proceeding for compensation for injury under this law shall be maintained * * * unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of same; or, in case of death of the employe or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. For good cause the board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing the claim before the Board.’
The jury found, in answer to one special issue, that ‘good cause existed’ for Watson’s failure to file his claim sooner, and to another, that Watson’s mental incapacity comprised good cause for this delay. There was no submission of the issue of a mental incapacity such as would have postponed, under the statute, the running of the six-month claim period until the removal of that incapacity. Rather, mental incapacity was relied upon as good cause for failure to comply strictly with the requirement that the claim be filed within six months after the injury. Cf. Hawkins v. Safety Cas. Co., Tex., 207 S.W.2d 372, and cases there cited.
Now, the evidence most favorable to the claimant here on the issue of good cause may be summarized as follows: Watson continued on the job after his injury but quit after about ten *44 days because, he testified, he was no longer able to work. He had a headache, was weak, dizzy and nervous, and felt like he was in a daze. He consulted a physician at Mexia on June 12, 1945, and reported he had suffered a heatstroke. The doctor treated him for a nervous condition and continued treatments at intervals for about a month. In the meantime, Watson applied to the Humble Pipe Line Company for work and was examined and passed physically by a doctor on June 21, 1945. There is no showing that he ever went to work, but about two days later was hospitalized and remained in the hospital for about six days. He complained that his memory was poor and that he lacked the power of concentration. It appears he never worked any more after leaving the Stanolind in June of 1945 except for a short time early in 1946, when he took over an ice truck but had to quit because he could not keep the accounts. He testified he did not even remember employing the attorneys who filed his claim and brought this suit. In June, 1945, a doctor advised Watson that he should consult Dr. Arthur J. Schwenkenberg, a Dallas psychiatrist. This doctor described his specialized filed as dealing with nervous and mental diseases. Watson was carried by relatives to see Dr. Schwenkenberg on October 31, 1945, and he was immediately admitted to a sanitarium because, as this doctor put it, it was obvious that he needed help. This doctor testified that Watson ‘was suffering from depression, it is a state of mind, he had the feeling of fear, the feeling of morbidity, the feeling of hopelessness, the feeling that he was going to die, he had all those things along with the headache.’ Dr. Schwenkenberg gave Watson five electric shock treatments up to November 17, 1945. In this treatment, an electrode is applied to the forehead and a current of electricity goes through the brain and produces a heavy shock or sleep and an amnesia. Ordinarily this amnesia would be of short duration, but Dr. Schwenkenberg testified that it was possible that the shock treatments might blot out for a matter of months the memory of a particular occurrence.
Watson testified he was locked up at Dr. Schwenkenberg’s hospital except during recreation hours and that he had so great a fear of the electrical shock treatments that he escaped from the sanitarium about November 17th.
Subsequently, up to the time of filing his claim, Watson consulted several other doctors, and after the claim was filed he underwent further electrical shock treatments at a Galveston hospital.
Nine lay witnesses testified in substance that Watson was *45 unable to carry on a connected conversation, and one of them, when pressed upon cross-examination, went so far as to say that he thought Watson was ‘crazy.’
From the time of the injury to the trial Watson had lost some sixty pounds and was still losing.
All of this testimony obviously presents not only some but even abundant evidence of probative value in support of Watson’s claim that he lacked mental capacity and the power of concentration to look after his affairs properly and that **992 his condition presented a meritorious case in which good cause had been shown for not filing the compensation claim within six months after his injury. A jury question upon the issue of good cause was certainly raised.
The Court of Civil Appeals adverted in its opinion to evidence of respectable weight and much significance tending to negative good cause. Those circumstances, however, are not conclusive as a matter of law, but simply present countervailing evidence to that relied upon by the claimant, all of which was for the jury to weigh and appraise. It rejected the insurance carrier’s position and, as has been shown, upon substantial evidence rendered a verdict in Watson’s favor. Under the circumstances thus presented, this verdict must stand.
The following occurrence is urged by the insurance company as jury misconduct entitling it to a new trial in event its contention that it was entitled to an instructed verdict is overruled. While Watson’s attorney was examining the jury panel, one of the jurors was asked if he had ever received a personal injury, and he replied that he had and showed that one of the joints of his finger had been cut off, and stated that he had never gotten anything out of it. During the second day of the trial, immediately after the judge had announced a recess and as the jury was leaving the courtroom, this juror stopped at the counsel table where Watson’s attorney was standing and asked if he could get a ‘little free advice.’ The attorney replied, ‘If I can, I will.’ The juror then said he was wondering if he could get any compensation for the loss of his finger. He stated that his then employer had a policy of insurance, and the attorney said, ‘I will have to see the policy before I can tell you whether you have any rights under it.’ The juror volunteered the information that he had gotten $75.00 on it, and the attorney asked him, ‘You signed a release?’ The juror replied, ‘Yes I guess it is dead when I got that $75.00,’ and the attorney agreed, ‘I guess *46 so.’ This conversation occurred before the judge had left the bench; one of the attorneys for the insurance company was standing nearby and heard its beginning but walked away while it was still in progress.
Immediately after the recess the insurance company moved for a mistrial because of this occurrence, and again urged the point in its motion for new trial. The motions were overruled.
Before the adoption of the Rules of Civil Procedure, Maryland Casualty Co. v. Morua, Tex.Civ.App., 180 S.W.2d 194, error refused.
The trial court concluded, after hearing the evidence on the motion, that no harm resulted. Although the propriety of the juror’s seeking advice from the attorney under these circumstances is of course most questionable, a consideration of the incident indicates its entirely innocuous character and that in *47 all probability it was not likely to have influenced the juror’s verdict in any way. The conclusion reached by the district judge that this was the case will be respected.
The insurance company urges that the holding in Cloudt v. Hutcherson, Tex.Civ.App., 175 S.W.2d 643, error refused for want of merit. After having found misconduct, the court in the Birtcher case applied the so-called rule of reasonable doubt, which no longer obtains in this State.
No reversible error is presented by this contention.
The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.