American Mut. Liability Ins. Co. v. Wedgeworth, 10964.
Decision Date | 04 April 1940 |
Docket Number | No. 10964.,10964. |
Citation | 140 S.W.2d 213 |
Parties | AMERICAN MUT. LIABILITY INS. CO. v. WEDGEWORTH. |
Court | Texas Court of Appeals |
Appeal from District Court, Harris County; Roy F. Campbell, Judge.
Suit under the Workmen's Compensation Act by J. L. Wedgeworth to set aside an award of the Industrial Accident Board in favor of the American Mutual Liability Insurance Company. From a judgment granting relief, the defendant appeals.
Affirmed.
Baker, Botts, Andrews & Wharton and Albert P. Jones, all of Houston, for appellant.
Collins, Pate, Hatchell & Garrison and Pitser H. Garrison, all of Lufkin, for appellee.
This general statement adopted by the appellee as being substantially correct, is taken from the appellant's brief:
Appellant inveighs here against that determination below through thirteen propositions of law; in different forms the first six of them declare in ultimate purport that the evidence showed, as a matter of law, that the appellee did not have a good cause for failing to file his claim for compensation within the six months required by R.S. Article 8307, section 4a, and could not reasonably have believed that he did have one, as the court and jury found the facts to be on those two material features of the cause; they do not raise the different question of whether such findings were so against the overwhelming preponderance of the evidence as to be clearly wrong. The next three assert it to have been—for differently stated reasons—reversible error for the trial court to have submitted, over appellant's objections, special issues Nos. 34, 34a, 35, and 36, or any others of like import, inquiring whether the appellee reasonably believed until on or about January 28, 1938, "that his injury was trivial and would result in no physical incapacity, whether such belief constituted good cause for failing to file a claim for compensation until January 31, 1938, and whether a reasonably prudent person similarly situated would have relied on such belief, because the testimony of appellee, as well as that of his own witnesses, showed that he, pursuant to orders of his personal physician, laid off from work the latter part of May, 1937, stayed at home for about sixty days resting his leg and taking medicine, went back to work the latter part of July, and, after two or three weeks at work, quit a second time, and then returned home where he was unable to work and did not work, because such circumstances showed a disability which began long before January 28, 1938, and which precluded belief of triviality of injury as a good cause for delaying the filing of claim for compensation until January 31, 1938."
The last three of such propositions present that there was prejudicial error in the court's refusal to submit appellant's specially-requested issues Nos. 2 and 3, or at least similar ones, inquiring in effect whether the appellee knew he was unable to work within a month after he returned to his home from Houston in August of 1937, and whether he could have ascertained, by the exercise of ordinary care, the fact that he was disabled to perform some of the duties of his regular employment prior to January 28 of 1938.
After careful consideration of the record, it is determined that none of these contentions should be sustained; as concerns the first group of them so asserting that as a matter of law the verdict was without any support in the evidence, there appears to this court to have been a sort of mixing of metaphors upon appellant's part; that is, in so, first, moving on the trial for a directed verdict at the conclusion of the testimony, and, second, for judgment in its favor notwithstanding the verdict the jury had returned, it apparently confuses testimony relating to the appellee's sufferings of pain and physical inconvenience during the whole of the period from the date of his injury to January 28 of 1938, with what there was dealing with any loss of or reduction in his earning-capacity.
Indeed, under the testimony upon these two features—that is, as to whether he had a good cause and reasonable belief that he had it for delaying the filing of his claim as he did—of the appellee himself, as corroborated by that of Dr. Denman, it is not easy to see how such claim can be well founded; in order to support the position that the evidence showed the verdict unsupported as a matter of law, the rule on appeal is that only the testimony favorable to the verdict, discarding all that was adverse, should be considered. Haskins v. Panhandle, & S. F. R. Co., Tex. Civ.App., 89 S.W.2d 831; Missouri-K.-T. Ry. Co. v. Cunningham, 118 Tex. 607, 23 S.W.2d 343, 352; Jones v. Jones, Tex.Civ. App., 41 S.W.2d 496; Williams & Chastain v. Laird, Tex.Civ.App., 32 S.W.2d 502; Frazier v. Hanlon Gasoline Co., Tex. Civ.App., 29 S.W.2d 461; Clutter v. Wisconsin-Texas Oil Co., Tex.Civ.App., 233 S.W. 322, error refused; Young v. Blain, Tex.Com.App., 245 S.W. 65; New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620, writ refused; Austin Fire...
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