Blancett v. Homestake-Sapin Partners

Citation385 P.2d 568,1963 NMSC 180,73 N.M. 47
Decision Date30 September 1963
Docket NumberHOMESTAKE-SAPIN,No. 7267,7267
PartiesV. H. BLANCETT, Plaintiff-Appellant, v.PARTNERS, Employer, Defendant-Appellee.
CourtSupreme Court of New Mexico

Sheehan, Duhigg & Christensen, Albuquerque, for appellant.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellee.

COMPTON, Chief Justice.

This action was instituted by the appellant, plaintiff below, to recover workmen's compensation for a knee injury which he alleged was suffered by accident arising out of and in the course of his employment with appellee, defendant below, resulting in permanent partial disability and anticipated medical expenses in excess of $700.00.

At the close of the plaintiff's case the trial court, acting pursuant to Rule 41(b) of the Rules of Civil Procedure (Sec. 21-1-1(41), N.M.S.A., 1953 Comp.), sustained the defendant's motion to dismiss the complaint, and made the following pertinent findings of fact:

'3. That the said plaintiff called as a witness Dr. Eugene Szerlip, who testified as follows:

'a. That the said plaintiff had given him a history that he had bumped his knee on two occasions; that he made a tentative diagnosis of a torn cartilage in the knee at the time of his first examination; that the history was incompatible with the type of injury diagnosed at that time by the doctor.

'b. That on re-examination a short time prior to trial, he had again reexamined the right knee of plaintiff, found that the plaintiff had a good knee without any mechanical malfunction and without any disability that he could discover and attribute to any accident; that he could not find any evidence of a torn cartilage at the time of his second examination.

'4. That the plaintiff, by the testimony that he produced in his behalf, could not and did not prove he had incurred any disability as a natural and direct result of any accident and, further, that the plaintiff failed to prove any casual (sic) connection as a medical probability by expert testimony to his claimed accident and disability.'

The appellant has raised a number of points on appeal but, as we view them, they either challenge the sufficiency of the evidence to support the findings of the court, or claim error in the court's refusal to make certain contrary findings requested by him.

This court has said that in disposing of an action on its merits under Rule 41(b) a trial court is not bound to give the plaintiff's evidence the most favorable aspect, but only has the duty to weigh the evidence and give it such weight as the court believes it is entitled. Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 and Hickman v. Mylander, 68 N.M. 340, 362 P.2d 500. Upon review, in determining whether the findings of the trial court are supported by substantial evidence, this court will view the evidence in the light most favorable to support the findings. Montano v. Saavedra, supra; Totah Drilling Company v. Abraham, 64 N.M. 380, 328 P.2d 1083; Hines v. Hines, 64 N.M. 377, 328 P.2d 944.

The alleged accident complained of by appellant was a bumping of the inside of his right knee on the dump truck he was driving for appellee, while getting into the truck on August 31 and September 1, 1960. However, appellant testified that he had previously struck the same knee on another truck in June, 1960, and that the first time he suffered pain in the knee was after playing baseball on July 4, 1960. It was after striking the knee on September 1st that appellant lost 12 days from work stating he was unable to get out of bed on September 2, 1960. Incidentally, it is to be noted that for this period of time he received sick pay and payment on his medical bills under a health and accident policy he carried with his employer covering non-employment-connected sickness and accidents.

The appellant's medical expert testified that the type of injury he tentatively diagnosed on his first examination of appellant in February, 1961, was incompatible with the history given him by appellant; that a twisting injury was the more usual way in which this particular injury occurred. He further...

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21 cases
  • Trujillo v. Beaty Elec. Co., Inc.
    • United States
    • Court of Appeals of New Mexico
    • February 21, 1978
    ...Point II is that pain is not a disability factor and no compensation should be allowed. The defendants cite Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568 (1963) and Gomez v. Hausman Corporation, 83 N.M. 400, 492 P.2d 1263 (Ct.App.1971), cert. denied, 83 N.M. 395, 492 P.2d 1......
  • McCauley v. Ray
    • United States
    • New Mexico Supreme Court
    • December 16, 1968
    ...Sessing v. Yates Drilling Co., 74 N.M. 550, 395 P.2d 824; Witt v. Marcum Drilling Co., 73 N.M. 466, 389 P.2d 403; Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568. Nor does the fact that there may have been contrary evidence which would have supported a different verdict permi......
  • Frederick v. Younger Van Lines
    • United States
    • New Mexico Supreme Court
    • June 29, 1964
    ...340, 362 P.2d 500. We applied the rule in Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824, and very recently in Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568, both being workmen's compensation In this review, in which we are called upon to consider if the findings are suppor......
  • State ex rel. Reynolds v. Lewis
    • United States
    • New Mexico Supreme Court
    • April 5, 1973
    ...Sessing v. Yates Drilling Co., 74 N.M. 550, 395 P.2d 824; Witt v. Marcum Drilling Co., 73 N.M. 466, 389 P.2d 403; Blancett v. Homestake-Spain Partners, 73 N.M. 47, 385 P.2d 568. Nor does the fact that there may have been contrary evidence which would have supported a different verdict permi......
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