Texas State Highway Dept. v. Fillmon

• Decision Date: 18 July 1951
• Docket Number: No. A-3129,A-3129
• Citation: 242 S.W.2d 172,150 Tex. 460
• Parties: TEXAS STATE HIGHWAY DEPARTMENT v. FILLMON.
• Court: Texas Supreme Court

Page 172

242 S.W.2d 172

150 Tex. 460

TEXAS STATE HIGHWAY DEPARTMENT v. FILLMON.

No. A-3129.

Supreme Court of Texas.

July 18, 1951.

Rehearing Denied Oct. 3, 1951.

Price Daniel, Atty. Gen., and William S. Lott, Asst. Atty. Gen., for petitioner.

Brooks, Duke, Templeton & Brooks and Scarborough, Yates, Scarborough & Balck, Abilene, for respondent

SMITH, Justice.

This is a workmen's compensation case filed by respondent, Ava Fillmon, against petitioner, Texas State Highway Department, to recover workmen's compensation. Respondent alleged that her husband, E. L. Fillmon, while engaged in the course of his employment with the Texas State Highway Department, suffered a heat stroke which caused his death on September 5, 1947. It is undisputed that Mrs. Ava Fillmon is the surviving widow and sole beneficiary of E. L. Fillmon, deceased. Notice of injury and claim for compensation were not filed with the Industrial Accident Board of the State of Texas until August 24, 1949.

On September 27, 1949, the Industrial Accident Board issued notice to all parties concerned that a hearing on said claim would be held before the Board in Austin, Texas, on November 1, 1949. On November 17, 1949, the Board entered its final ruling and award holding that it was without jurisdiction because of its finding that respondent had failed to establish by proof that claim was filed within six months, as provided by law, or that good cause existed for delay in filing the claim until August 24, 1949. On November 21, 1949, respondent gave notice of her intention to appeal from said final ruling, decision and award made by the Board, and thereafter, on November 26, 1949, within the time required by law, caused this suit to be filed in the District Court of Taylor County.

The case was tried before the court without the intervention of a jury, and at the close of the testimony, the trial court rendered judgment for the respondent.

The judgment which was rendered and entered by the trial court in this case contains the following findings of fact: (a) 'that on September 5, 1947, E. L. Fillmon was employed by the Texas State Highway Department in the capacity of a laborer at a gravel pit in Taylor County'; (b) 'that the said E. L. Fillmon died on September 5, 1947, as a result of an injury received while at work in the above mentioned gravel pit'; (c) 'that the gravel pit was below the surface of the earth and under conditions of intense heat to which the general public was not subjected'; (d) 'and the said E. L. Fillmon, while working at such time and place and under such conditions, suffered the injury of heat stroke which was the producing cause of his death.'

On appeal to the Court of Civil Appeals for the Eleventh Supreme Judicial District of Texas, the judgment of the trial court was affirmed. 236 S.W.2d 635.

Petitioner presents to this Court four points of error, as follows: (a) the holding of the Court of Civil Appeals that there was evidence to support the finding and judgment of the trial court that the deceased actually worked on the morning of his death; (b) that said court erred in holding that there was evidence to support the finding and judgment of the trial court that E. L. Fillmon died as a result of a heat stroke; (c) the Court of Civl Appeals erred in holding that the trial court had jurisdiction to pass on issues going to the merits of respondent's claim; (d) the Court of Civil Appeals erred in holding that there was evidence to support the finding and judgment of the trial court that good cause was shown for respondent's delay in filing her claim until August 24, 1949.

We shall dispose of these points in the order named.

The petitioner's brief in the Court of Civil Appeals failed to assign as error the finding of the trial court that the deceased, E. L. Fillmon, actually worked on the morning of September 5, 1947, and this question was not raised until the filing of petitioner's motion for rehearing in the Court of Civil Appeals. A point not assigned as error in the Court of Civil Appeals cannot be considered here. Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979; Texas Rules of Civil Procedure, Rule 469(c).

However, in view of the other points of error which were properly raised by petitioner in the Court of Civil Appeals that there was no evidence to support other material findings of the trial court as well as the Court of Civil Appeals, we have carefully examined the record in its entirety and we are of the opinion that there is evidence to support the finding of fact that the deceased, E. L. Fillmon, was actually working and had been engaged in the performance of his duties for his employer during the morning of September 5, 1947, the date of his death.

In our opinion, the testimony of J. A. Moore, a witness called by the respondent, supports the finding of the trial court on this issue. Moore testified that Fillmon rode in a car with him that morning to the gravel, or caliche pit; that they arrived about 9:00 A. M.; that Fillmon went there to throw over-size rocks out of the pit; that Mr. Fillmon worked by himself except when we were loading. The record shows that Moore and one Carlisle were hauling gravel from the pit, and when they would return for a load, Fillmon would stand aside until the trucks were loaded. Moore further testified, in answer to the following question propounded on cross-examination: 'I will ask you how big the over-size rocks were that he was to throw out and did throw out.' 'Well, that's hard to answer by I don't believe they would have weighed over fifteen pounds.' (emphasis added); that Fillmon's job was to keept the rocks out of the way of the loading; that he didn't see Fillmon throw out any rocks that morning, but 'what he threw out was while I was gone.' Moore further testified that he returned to the pit twice for a load of gravel and each time Fillmon was down in the pit.

Although he says he didn't see him on any occasion throw out the rocks, he does testify to facts showing that Fillmon had thrown out rocks in his absence. There is no testimony that the truckers were delayed in loading on account of the failure of Fillmon to separate the larger rocks from those suitable for use. Fillmon was the only man working in the pit. Under the circumstances, there was no one other than Fillmon to have removed the rocks which Moore said had been moved or thrown out of the pit.

Mr. Moore reported the death of Mr. Fillmon to the maintenance foreman, Mr. F. M. Mangum, and in connection with the report to his superior, who was also the foreman over Mr. Fillmon, stated that the deceased had thrown some rocks out of the pit.

Petitioner next contends that there was no evidence to support the finding and judgment of the trial court that E. L. Fillmon died as a result of a heat stroke. This same point was raised and properly presented in the Court of Civil Appeals.

The petitioner submits that all of the evidence tending to show that Fillmon died as a result of a heat stroke was inadmissible. With this contention we cannot agree. The evidence contained in the Statement of Facts, a part of which is set out above, and in the opinion of the Court of Civil Appeals, was introduced without objection. ...