Texas Emp. Ins. Ass'n v. Portley

• Decision Date: 16 December 1953
• Docket Number: No. A-4285,A-4285
• Citation: 263 S.W.2d 247,153 Tex. 62
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. PORTLEY.
• Court: Texas Supreme Court

Page 247

263 S.W.2d 247

153 Tex. 62

TEXAS EMPLOYERS' INS. ASS'N v. PORTLEY.

No. A-4285.

Supreme Court of Texas.

Dec. 16, 1953.

Rehearing Denied Jan. 20, 1954.

Burford, Ryburn, Hincks & Ford and Howard Jensen, Dallas, for petitioner.

White & Yarborough and W. E. Johnson, Dallas, for respondent.

CALVERT, Justice.

This is a workmen's compensation case in which Jacob Portley, as plaintiff, recovered a judgment for benefits for total and permanent disability. That judgment was affirmed by the Court of Civil Appeals. 258 S.W.2d 380.

The injury out of which the claim grew was alleged to have occurred on or about March 1, 1950, but claim for compensation was not filed until March 29, 1951. As good cause for his failure to file his claim within the six month period provided in the statute, Article 8307, sec. 4a, R.C.S. Vernon's Ann.Civ.St. art. 8307, § 4a, and thereafter until he was severed from his employment on February 19, 1951, plaintiff alleged that he did not realize the seriousness of his condition, thought that he was going to be all right, and was not incapacitated for work.

In answer to special issues the jury found, in substance: (1) that in the beginning of his incapacity the plaintiff believed that his injury was not serious and his condition would improve; (2) that he continued in that belief up until February 19, 1951; (3) that his belief that his injury was not serious was the cause of his failure to file his claim up until February 19, 1951; and (4) that such belief was good cause for the failure to file in time.

By motion for an instructed verdict in the trial court, by point of error in the Court of Civil Appeals and by point of error in this Court the defendant has contended at all times and still contends that the evidence fails, as a matter of law, to show that good cause existed for failure to file the claim prior to February 19, 1951. We agree with the defendant on this phase of the case, rendering unnecessary any discussion of other points of error.

Actually, it is to be doubted that the jury's answers to the special issues establish good cause for the plaintiff's failure to file his claim during the period from the date of his injury to February 19, 1951, but the parties have treated them as though they were sufficient in this respect and for the purposes of this opinion we shall regard them in the same light.

The record reflects that the defendant strenuously contested the claim of the plaintiff that he had suffered a compensable accidental injury, but the evidence viewed from the plaintiff's standpoint reflects that he cut the bottom of his heel by stepping in an open floor drain in the kitchen where he worked; that he continued to work about three days before consulting a doctor, at which time he consulted Dr. Mays, a Chiropodist, who treated him and referred him to Dr. N. T. Watts, a general practitioner. Dr. Mays was not called as a witness. Dr. Watts, who treated the plaintiff for a period of some three weeks, was called as a witness by the plaintiff. He testified that in his opinion the injury suffered by the plaintiff was probably the producing cause or exciting cause of a cancerous condition that developed and subsequently led to the amputation of plaintiff's leg. On August 8, 1950, the plaintiff became the patient of Dr. E. M. Combs, a Chiropractor, who treated him at regular intervals of two or three days through the months of August, September and October and until November 7, 1950, and again from January 5 through February 1, 1951, about which time he referred the plaintiff to Dr. W. W. Baldwin, an Osteopath. A short while after the plaintiff was severed from his employment on February 19th Dr. Baldwin performed an operation on the plaintiff's right thigh, removing a tumor therefrom. On May 11, 1951, the plaintiff entered Parkland Hospital where on May 21st an operation was performed for removal of his right leg, the condition requiring the operation being diagnosed as malignant melanoma. Dr. Combs was called as a witness for the defendant but neither Dr. Baldwin nor any of the doctors attending the plaintiff at Parkland Hospital were called by either party.

The plaintiff rested his case on his own testimony, and that of his wife and of Dr. Watts. If evidence of good cause for failure to file the claim for compensation before February 19, 1951, is to be found in the record, it must be found in the testimony of these three witnesses.

The plaintiff and his wife, Lois Portley, were examined closely on the nature of the injury and its continuing condition, and it would extend this opinion to unnecessary lengths to quote their testimony here, even in substantial part. We deem it sufficient to point out that their testimony establishes at least these facts: On the day of the injury swelling developed in the right foot and leg that by night made removal of the shoe difficult. However, the plaintiff continued to work until the morning of the third day thereafter when, upon going home, his shoe was removed by his wife who found the place of the injury infected and running, the foot bloody, and the leg swollen to a point just below the knee. It was then that the plaintiff consulted Dr. Mays who referred him to Dr. Watts. Dr. Watts required the plaintiff to remain in bed for the two weeks of March 6th and March 13th and gave him a series of penicillin injections.

At the end of the two-week...