Torres v. Western Cas. & Sur. Co.
| Decision Date | 03 December 1969 |
| Docket Number | No. 11694,11694 |
| Citation | 449 S.W.2d 148 |
| Parties | Arthur TORRES, Appellant, v. WESTERN CASUALTY AND SURETY COMPANY, Appellee. . Austin |
| Court | Texas Court of Appeals |
Charles B. Everett, Houston, Wallace Shropshire, Austin, for appellant.
Brown, Erwin, Maroney & Barber, Will G. Barber, Austin, for appellee.
This appeal arises from a workmen's compensation suit in which the trial court granted defendant's (appellee) motion for summary judgment based on plaintiff's (appellant) failure to file a timely claim with the Industrial Accident Board. From that summary judgment the plaintiff-appellant has perfected his appeal to this Court.
We affirm.
Appellant is before us with one point of error that the trial court erred in granting appellee's motion for summary judgment because the pleadings, depositions and affidavits raised material issues of fact as to whether or not appellant had good cause for failure to file his claim within six months, as required by statute.
We overrule this point.
The injury made the basis of the compensation claim sued upon in this case occurred on December 18, 1965. It was one year, six months, and one day later, however before appellant filed his compensation claim with the Industrial Accident Board on June 19, 1967. Thus his claim was filed too late as a matter of law unless good cause can be shown. Tex.Rev.Civ.Stat.Ann. art. 8306 et seq.
Appellee's motion for summary judgment put the fact question of good cause at issue. Appellant failed to counter with any summary judgment 'evidence;' consequently, the court had no alternative but to grant the motion.
The basis of continuing 'good cause' alleged by plaintiff in his petition is threefold; one, belief by plaintiff 'that there was some doubt or good reason to believe that the problem he was having with his kidneys was the cause or contributing cause of his pain in his back;' two, statement by defendant's adjuster to plaintiff that 'he would be taken care of and all necessary medical attention would be given to him to correct his condition;' and three, payments of compensation benefits by defendant to plaintiff. These allegations alone do not make a genuine fact issue. A genuine issue of fact in a summary judgment record is made by depositions, admissions, or affidavits sworn to 'by competent affiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence.' Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 399 (Tex.1958); State v. Rope, 419 S.W.2d 890, 900 (Tex.Civ.App., Austin, 1967, no writ); Schepps v. American District Telegraph Co., 286 S.W.2d 684, 689 (Tex . Civ.App., Dallas, 1955, no writ). As said in Schepps:
* * *'
What appellant has failed to do in this case is to support his alleged 'good cause' with deposition testimony, admissions, or a competent affidavit. This alone requires affirmance of the trial court's summary judgment for defendant.
There is a deposition of appellant in evidence and there are interrogatories propounded to him; however, there is no evidence therein remotely bearing on the question of good cause for the late filing.
Appellee has a motion before us to dismiss for want of jurisdiction contending that appellant did not timely file his appeal bond and record. Tex.R.Civ.P. 356, 386.
Summary judgment was entered with notice of appeal ...
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Torres v. Western Cas. & Sur. Co.
...raised a fact question as to plaintiff's good cause for the late filing and that plaintiff failed to produce any proof on that issue. 449 S.W.2d 148. We hold that defendant failed to establish its right to summary judgment, and we remand the case for There is a preliminary question. Plainti......