HARTFORD ACCIDENT & INDEMNITY CO. v. BLACK et al., 193 F.2d 971

HOLMES, Circuit Judge. A jurisdictional prerequisite to the recovery of compensation, under the Texas Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq. is the filing of a claim for compensation with the Industrial Accident Board within six months after the injury, unless good cause for failing to file the claim within six months is shown. Appellee Onie Bell Black filed her claim for compensation with the Industrial Accident Board on April 9, 1949. She testified, on the trial below, that the injury occurred on October 19, 1948.

Doctor Flowers, to whom appellee had first gone for medical examination on October 19, 1948, testified that appellee had reported the accidental injury as having occurred on October 2, 1948, which date, he said, was placed on the medical history records in his office. Appellee denied having so reported to him the date of the injury, and, in rebuttal of the doctor’s testimony, offered copies of the notice of injury and claim for compensation, both documents having been prepared by Doctor Flowers’ secretary from information admittedly furnished by Mrs. Black.

These two documents gave the date of the injury as being October 19, 1949. They had been introduced earlier in the trial, and were then limited to the purpose of showing the fact that they had been filed. After Doctor Flowers’ testimony, appellee offered the documents to show the date on which she claimed her injury occurred. Appellant objected on the ground that the documents were being offered as self-serving statements and were subject to the hearsay rule.

The court said: “Well, I will let them in as bearing on the question of the date of the injury.” The attorney for appellee then said that he offered these as showing the date of October 19th on each of them, and offered plaintiff’s exhibits Nos. 1 and 2, theretofore admitted in evidence. The record shows that the court thereupon admitted plaintiff’s exhibits Nos. 1 and 2 for the purpose of showing the date on which it was claimed the injury occurred, as shown in said exhibits, and that said instruments had previously been limited to jurisdictional purposes by the court at the time of their original admission.

Thereupon a conference took place between the court and counsel at the bench, out of the hearing of the reporter and the jury; and no further ruling was made by the court enlarging the scope or purpose of this evidence. The court’s ruling as to the evidence “bearing on the date of the injury” is not perfectly clear to us; but we cannot say that it was erroneous, since it did have a bearing upon the jurisdictional issue presented by the pleadings.

In objecting to counsel’s argument on the merits, appellant’s lawyer correctly stated that the court admitted the evidence for the limited purpose of showing that the claim was made; and this objection should have been sustained, but the court overruled it. All of the foregoing has to do with the jurisdictional issue. On the merits, there is no question deemed by us sufficiently serious to require discussion by us. All such were questions of fact, and have been decided by the jury. Even the jurisdictional issue presented a question of fact, which was submitted to the jury by the court under proper instructions.

No witness testified from personal knowledge as to the date of the injury except appellee. Doctor Flowers’ testimony was relevant and material only so far as it related to or had a bearing on the impeachment of Mrs. Black, the appellee, even though it was first introduced in the deposition of a witness who was offered by the plaintiff. The documentary evidence as to notice of the injury and the claim for compensation tended to refute the testimony of Doctor Flowers, which tended to impeach Mrs. Black, as Doctor Flowers had no personal knowledge of the date of the injury. The credibility of Mrs.

Black as to the date of the injury was peculiarly a question for the jury. The limitation of the purpose for the admission of plaintiff’s exhibits Nos. 1 and 2 was expressly made, not only by the court, but by plaintiff’s attorney in offering it; and this limitation was not removed expressly or impliedly by the court in overruling appellant’s objection to counsel’s argument.

No motion for a mistrial on account of improper argument was timely made by appellant; but if it had been made, and conceding that the court erred in ruling on the propriety of counsel’s argument, the point involved is a highly technical one, and the error not a sufficient reason to warrant reversal. The appellee being the only witness who had any personal knowledge of the date of the injury, the jury were fully warranted in believing her. Affirmed.