Blancett v. Homestake-Sapin Partners
Citation | 385 P.2d 568,1963 NMSC 180,73 N.M. 47 |
Decision Date | 30 September 1963 |
Docket Number | HOMESTAKE-SAPIN,No. 7267,7267 |
Parties | V. H. BLANCETT, Plaintiff-Appellant, v.PARTNERS, Employer, Defendant-Appellee. |
Court | Supreme Court of New Mexico |
Sheehan, Duhigg & Christensen, Albuquerque, for appellant.
McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellee.
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:
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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...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......
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