Montano v. Saavedra
Decision Date | 11 July 1962 |
Docket Number | No. 7062,7062 |
Citation | 70 N.M. 332,1962 NMSC 95,373 P.2d 824 |
Parties | Rumaldo S. MONTANO, Claimant, Plaintiff-Appellant, v. Ike C. SAAVEDRA and Andres A. Montoya, Individually, and d/b/a Montoya-Saavedra Company, Employer; and Westchester Insurance Company, Insurer, Defendants-Appellees. |
Court | New Mexico Supreme Court |
Ramon Lopez, Charles Driscoll, Albuquerque, for appellant.
Keleher & McLeod, Russell Moore, Albuquerque, for appellees.
This appeal is from a non-suit granted pursuant to Rule 41(b) at the close of plaintiff's evidence in a workmen's compensation case tried to the court without a jury. The complaint was filed October 9, 1959, claiming compensation for an accident occurring July 12, 1959. The Rules of Civil Procedure are applicable. Sec. 59-10-13.9, N.M.S.A.1953.
When acting under Rule 41(b), the trial court may determine the facts and in so doing is not bound to give plaintiff's testimony the most favorable aspect, together with all reasonable inferences therefrom, and to disregard all unfavorable testimony. Rather, it is the trial court's duty to weigh the evidence and give to it such weight as he believes it is entitled to receive. Hickman v. Mylander, 68 N.M. 340, 362 P.2d 500.
Acting pursuant to the rule, the trial court made and entered findings of fact and conclusions of law disposing of the action on its merits. Those findings and conclusions were:
Conclusions:
Appellant attacks finding of fact No. 2, and conclusion of law No. 1, as being contrary to the uncontradicted evidence. Appellant (plaintiff below) presented only his own testimony and that of Dr. Rosenbaum, a medical expert.
Section 59-10-13.3, N.M.S.A.1953 (Ch. 67, Sec. 7, Laws 1959) insofar as pertinent, reads:
The motion to dismiss raised the question as to whether the testimony of the medical expert established the causal connection between the accident and the injury complained of as a medical probability. If the causal connection was based upon testimony of the medical expert as a medical possibility or upon speculation, then as a matter of law the trial court was bound to dismiss the action.
In view of the statutory requirement that causal connection must be established as a medical probability, finding of fact No. 2 has the effect of finding that it was not so established in this case. We then examine the evidence to determine whether the finding is supported by substantial evidence. In doing this we view the evidence in the light most favorable to supporting the finding. Greene v. Esquibel, 58 N.M. 429, 272 P.2d 330; Addison v. Tessier, 62 N.M. 120, 305 P.2d 1067; Hines v. Hines, 64 N.M. 377, 328 P.2d 944; Totah Drilling Co. v. Abraham, 64 N.M. 380, 328 P.2d 1083.
Appellant slipped and fell when taking mail from a train to a truck, injuring his ribs and right side. On his first visit to Dr. Rosenbaum, he complained of his lower right ribs and soreness in the neck and shoulders. X-rays showed two fractures in the ninth rib and one in the tenth rib. The ribs were healed or were healing. Osteo-arthritis was shown in the neck area. No complaint was made at that time of any injury to the lower back. He first complained of his low back in February, 1960. X-rays were taken showing some osteoarthritis, but no significant changes. Appellant was treated February 29, March 3 and March 28. He did not see the doctor again until April, 1961, shortly before the trial, when he returned to Dr. Rosenbaum for further x-rays for the purpose of evaluation for the trial. The last x-ray showed a thinning of the disk between the fifth and sixth cervical vertebra. In the meantime, appellant had worked for a lawn service and as a roofer. The doctor testified on cross-examination that the pain in the low back at the time of the 1961 examination could be the result of the arthritic condition or as a result of the type of manual labor appellant was doing.
While Dr. Rosenbaum, in answer to a hypothetical question, did testify, 'It is quite probable that this accident is the cause of his disability in his low back now.' On cross-examination, however, he admitted it would be difficult to say with any degree of probability that claimant's condition at the time of trial was probably caused by the accident of July 12, 1959. On redirect, he answered:
Appellant argues that the trial court either (1) mistakenly believed that the medical expert did not testify that there was a causal connection as a medical probability, or (2) that the testimony of the medical expert...
To continue reading
Request your trial-
Trujillo v. Beaty Elec. Co., Inc.
...of facts. As this Court said in Martinez v. Fluor Utah, Inc., 90 N.M. 782, 568 P.2d 618 (Ct.App.1977), quoting from Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962): "It is for the trier of the facts to weigh the testimony, determine the credibility of the witnesses, and, to reconcile ......
-
Wilson v. Employment Sec. Commission
...by the district court. This is the rule that binds us on appeal in reviewing facts as found by the trial court, Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824, and is the rule by which the trial court is bound in reviewing findings of the commission. See Johnson v. Sanchez and the other cas......
-
Ross v. Sayers Well Servicing Co.
...11 Defense L.J. 189; Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345. Although there is a statement in Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824, as well as in Renfro v. San Juan Hospital, Inc., 75 N.M. 235, 403 P.2d 681, generally to the effect that expert opinion evide......
-
Sanchez v. Siemens Transmission Systems
...we note that the weight and credibility to be given to the testimony of each witness is the WCJ's prerogative. See Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962) (conflicts in testimony are for the hearing officer to reconcile); Marez v. Kerr-McGee Nuclear Employer argues that there ......