TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Petitioner, v. Troy Alvie LEATHERS, Respondent, 395 S.W.2d 601

HAMILTON, Justice. This is a workmen’s compensation case. The respondent alleged that he was injured hy an electric switch blowing up in his face on November 11, 1954, and that said injury resulted in the burning of his face and eyes and caused an electrical shock thereto which caused him to have se,vere dizzy spells which started about six months after said accident, and which injury resulted in respondent’s being totally and permanently incapacitated thereafter.

Respondent filed his claim for compensation for said injury and total permanent incapacity resulting therefrom with the Industrial Accident Board on July 25,1962.

As ground for good cause for not filing said claim within the time required by law respondent alleged: “ * * * at the time of said injuries and up until the time he began having said dizzy and blackout spells, he believed and was informed by physicians that he had no injury of any serious or disabling nature, and upon the outset of said dizzy and blackout spells up until a few days before the filing of his claim herein, he believed and was informed by physicians that said dizzy and blackout spells were caused by a heart condition which was congenital and had no connection with said injuries, and upon his finding; out otherwise a few days prior to the filing of his claim herein, he immediately contacted attorneys and they immediately prepared his claim and filed same on the date heretofore set out, * * Petitioner filed an answer under oath denying that respondent is suffering any disability or incapacity as a result of the November 11, 1954 accident, and denying that respondent had good cause for failure to file his claim within the time required by law.

Petitioner thereafter filed a motion for

summary judgment stating that from the pleadings and depositions on file that respondent without good cause failed to file his claim for compensation with the Industrial Accident Board of the State of Texas within the time required by law, and further that respondent has suffered no disability or incapacity as a result of the accident allegedly occurring on November 11, 1954. In addition to the pleadings there are in the record two depositions, one taken of the respondent, Troy Alvie Leathers, and another of Dr. Chas. Dulaney. On this record the trial court granted petitioner’s motion for

summary judgment and entered judgment that plaintiff take nothing. The Court of Civil Appeals has reversed this judgment and remanded the cause for trial. 380 S.W.2d 852. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court. The respondent testified in his deposition that he worked for the Universal Atlas Cement Company from 1950 to December 30, 1961, and on November 11, 1954, he had an accident when an electric switch blew up in his face. He suffered burns on his face and was treated by Dr. Marstaller. He spent one night in the hospital and returned to work the next day.

He had no difficulty thereafter until he had a fainting spell on the job in the latter part of 1955, about a year after the accident. He was taken to the hospital and was treated by Dr. Marstaller, his own doctor. He was released from the hospital after about four ór five days. The doctor told him he had a light heart condition. He did not mention to his doctor about the accident of 1954, but said that the doctor knew about his accident. Respondent said he did not have an electrocardiogram at that time.

After the 1955 hospitalization he began having dizzy spells and blackout spells once or twice a month, which continued up until December 30, 1961, when he was again hospitalized. He “took sick” with fainting spells on December 30, 1961, and went back to the hospital. He stayed there eleven days and was treated by Dr. Dulaney and Dr. Morrison. While he was there they gave him an electrocardiogram. He reported back to his company to go to work in July of 1962, the company doctor turned him down, and he was laid off.

Respondent Leathers further testified that he knew these dizzy spells were disabling, but he continued to work because he had to, as he had no other source of income; that the first time he ever got the idea that there might have been some connection between his dizzy spells and the 1954 accident was when his brother, who is an iron worker, mentioned to him that it could have been caused by the accident; that he went to a lawyer and had his claim filed two or three days after his brother told him. Doctor Dulaney in his deposition testified that he was a member of the clinic of which Dr.

Marstaller was a member in 1954 when Leathers was seen on November 11, 1954, in the emergency room at Hill-crest Hospital with first and second degree burns of the face. Leathers was admitted to the hospital with an episode of acute pneumonia and pneumonitis on October 20, 1955, and discharged on October 24, 1955. The records show that on July 6, 1959, he was complaining of chest pain and the trouble was diagnosed as pleurisy and bronchitis. An electrocardiogram was given Leathers at that time, which showed a normal heart condition. Dr.

Dulaney further testified that in January, 1962, Leathers was again hospitalized. He was complaining of blackout spells at that time. The record shows that Leathers was found to have an abnormal heart beat at the time he was seen in January and was placed on medication to slow the heart rate. He was treated again in March of 1962 as a follow-up of the blackout spells and the heart abnormality which he had developed. Dr. Du-laney concluded that the abnormal heart was a rhythm disturbance.

He described it as an atrial flutter with supra ventricular tachy cardia, which he had in January and at subsequent follow-up visits. He said in effect that the cause of this type of heart condition is not known. The last time he saw him was May 23, 1962, when he discharged him. He told him that he wanted to recheck him in two weeks, but he had not seen him since.

For cause for not filing his claim any sooner than he. did respondent is relying on his pleading that he did not believe his injuries were serious up until the onset of the dizzy and blackout spells which began in 1955, and that after the onset of his dizzy and blackout spells “he believed and was informed by physicians that said dizzy and blackout spells were caused by. a heart condition which was congenital and had no connection with said injuries.” And upon finding out otherwise from his brother he immediately filed the claim upon which this suit is based on July 25, 1962.

This record shows that for nearly seven years after Leathers began suffering from dizzy spells he consulted with doctors numerous times, but not once did he inquire as to the cause of his dizzy spells. He alleges that he believed that his heart condition was the cause of his dizzy spells and he believed his heart condition had no connection with his injury, but he says he never did ask a doctor about such connection. Consequently, his belief cannot be based on what any doctor told him.

If his brother, a layman, could tell him what was causing his dizzy spells some seven years later, then a doctor should have been able to tell him much sooner had he used any diligence. While good faith belief of a claimant that his injuries were caused by something other than an accident he received in the course of his employment may be good cause for failure to present his claim within the statutory time, yet such belief must meet the test of ordinary prudence. The rule as applied to a similar situation is stated by Justice Norvell in Copinjon v.

Aetna Casualty and Surety Company, 242 S.W.2d 219, (Tex.Civ.App.1959, writ ref.) as follows: “It has been held that a good faith belief on the part of a claimant that his injuries were not serious may constitute ‘good cause’ for failing to present a claim within the statutory time. Such belief, however, must meet the primary test of ordinance prudence. Hawkins v.

Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370. “Taking as true his statements of pain and suffering undergone by him following the accident of August 5, 1946, appellant’s action in delaying the filing of his claim until December 27, 1948, does not meet the standard of ordinary prudence. This conclusively appears as a matter of law.” 242 S.W.2d at p. 220. See also Texas Employers’ Insurance Association v. Portley, 153 Tex. 62, 67, 263 S.W.2d 247 (1953).

Assuming as true that the disability of which Leathers complains is the result of dizzy spells caused by the 1954 accident, he had ample opportunity to learn the facts simply by asking, during some of the numerous times he consulted with doctors over a period of nearly seven years after his disability from dizzy spells began. This record shows conclusively that Leathers’ conduct does not meet the standard of ordinary prudence. The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed. GREENHILL, J., concurs in the result. CALVERT, C. J., and WALKER, J., dissenting.