This is а compensation case. On a verdict favorable to plaintiff, the Court set aside the award of the Industrial Accident Board and decreed that plaintiff recover the sum of $20.18 per week for a period of 401 weeks from September 8, 1960, and found thаt the plaintiff is entitled to have the liability of the defendant redeemed by payment of a lump sum with interest upon all past due installments at the rate of 4% compounded annually from the date that each became due, and for all advanced payments discounted at the rate of 4% compounded annually, and to recover interest upon the judgment at 4% compounded annually from date of judgment until paid, and found that defendant had not paid any compensation up to date. It further decreed that plaintiff recover the sum of $7424.41, with interest at the rate of 4% per annum compounded annually from date of judgment until paid, and fixed reasonable attorneys fees for plaintiff’s attorneys, and decreed that plaintiff be apportioned 70% of the аmount of the judgment, and that his attorneys be apportioned 30%, and taxed all costs against defendant.
The judgment is assailed on 19 Points. Points 1 and 2 are to the effect that the Court erred substantially as follows: (1) In presuming as a matter of law that ap-pellee had good cause for failure to file his claim with the Industrial Accident Board before July 26, 1961, more than six months subsequent to September 8, 1960, the date of the alleged accidental injury; (2) In overruling appellant’s motion for instructed *257 verdict, where the evidence and thе admissions of appellee established as a matter of law that appellee did not file his notice of claim with the Industrial Accident Board within six months of the date of the alleged accidental injury and did not have good cause for his late filing. It is our view that each of the Points must be overruled for reasons hereinafter stated.
A statement is necessary. Plaintiff filed his claim on July 25, 1961, with the Industrial-Accident Board for accidental injury sustained by him on September 8, 1960, in the course of his employment while he was assisting in moving some boxes out of the elevator at Goldstein-Migel Company in Waco, and stated that a stack of boxes buckled and fell against him, knocking him against the elevator and caused the accidental injury to his right leg, which injury extended to and affected other parts of his body generally. Evidence was tendered to the effect that six or eight bundles weighing 60 pounds to the bundle, struck plaintiff on his right leg and threw him back against the steel wall of the elevator, striking his right hip, and that the weight of the bundles caused him to fall to the floor, and that he came to rest after the fall sitting on the floor against the back of the elevator with his left leg in a twisted position and his right leg outstretched with the bundles piled on his leg, pinning him down until they were removed by a fellow employee; that after the accident the сlaimant complained of an open wound seven to eight inches long on the front of his right leg below the knee where the skin and flesh were scraped down to the bone; that a swollen area immediately developed below the right knee and never went away; that plaintiff at once began having severe pain in his right leg and up the back of his leg and into the hip along the sciatic nerve; that as a result of the injury and resulting infection in the area, a severe phlebitis developed which still persists at the time of the trial; that swelling and discoloration developed in the leg as a result of the injury and infection and enlarged, tortuous and painful varicose veins developed in the right leg as a result of the accident; that severe cramping develoрed in the right leg; that arthritic deposits in the right knee and right hip and in the blood vessels in the pelvic region near the right hip j oint either developed as a result of the accident or were aggravated by the injury so that such condition for the first time began to cause pain and discomfort; that the sciatic nerve on the right side was damaged by the direct blow to the hip in the accident, and the infection and persistent pain along the sciatic nerve on the right side was caused by a ruptured disc, and that the injuries have resulted in total and permanent incapacity, and that he has been so incapacitated since the date of the accident on September 8, 1960.
Plaintiff’s original petition was filed November 6, 1961, and his first amended original petition was filed on March 2, 1962, the last being the pleading on which the plaintiff went to trial. The original petition contains some 11 pages; plaintiff’s first amended original petition, on which he went to trial, contains some 9 pages, and in each of these pleadings plaintiff set out clеarly and in detail grounds which he alleged constituted good cause for his failure to file claim for compensation with the Industrial Accident Board for his injuries of September 8, 1960, until July 26, 1961.
Since the sufficiency of appellee’s trial pleading on the grounds of good cause have not been questioned by points of assignment in appellant’s brief, and since the defendant did not deny either the existence of good cause or the truth of plaintiff’s allegations of good cause in a pleading filed not less than 7 days bеfore the cause proceeded to trial as required by Rule 93 (n), Texas Rules of Civil Procedure, it would serve no useful purpose to go into detail as to the allegations of plaintiff constituting good cause. See Art. 8307b, Vernon’s Ann. Rev.Civ.Stats.; Southern Underwriters v. Tullos;
“It appears to the Court that the plaintiff, by the allegations in his first amended original petition, shows good cause for plaintiff’s failure to file claim for compensation with the Industrial Accident Board until the time the same was filed on July 26, 1961, and it appears further to the Court that defendant did not, either in its second amended original answer, filed on March 14, 1962, or in an amended pleading filed not less than seven days before this cause proceeded to trial, deny under oath the existence of good cause for plaintiff’s failure to file claim within six months аfter the date of the injury, or the truth of the facts pleaded by plaintiff as constituting good cause for delay in filing claim for compensation until the time it was filed on July 26, 1961.”
The foregoing finding is not challenged by appellant’s amended motion for new trial, nor is it challеnged in appellant’s brief, and must be accepted as correct. See Benson v. Greenville National Exchange Bank, Tex.Civ.App.,
Appellant cites and relies on the following cases: Southern Underwriters v. Tullos, supra; Watson v. Texas Indemnity Ins. Co.,
In oral argument appellant’s counsel put great stress on the decision of the Beaumont Court in the Landry case, supra. We have carefully reviewed this decision and it is our view that the factual situation in the Landry case is obviously distinguishable from the undisputed factual situation in this cause, and the Rule applied in the Landry case is not applicable here. We
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think we should add that issues are not tried by consent merely by the hearing of testimony thereon, but that submission to the jury has been held to be а part of the process, and the mere facts that testimony may have been developed on issues not necessary to be submitted to the jury under the pleading does not mean that the party has consented to the trial of such issues. See Matthews v. Gеneral Accident, Fire & Life Assurance Corp.,
We think we should state that the law is well settled that in all cases a reasonable time should be allowed for thе investigation, for the preparation and filing of a claim for compensation after the seriousness of the injuries is suspected or determined, and what is a reasonable time depends upon the facts of the particular case and is usually a question of fact. See Hawkins v. Safety Casualty Company, supra. In Texas the rule is well settled that the bona fide belief by a claimant that his injuries are not serious or that they will not disable constitutes good cause if the claimant is acting as an ordinarily prudent рerson, and particularly is this true when the belief is induced at least in part by the positive representation of the insurance company’s doctor that the injury is not serious and will not be disabling and that claimant can and should continue working. See Hawkins v. Safety Cаsualty Company, supra. It is likewise true that the good faith that a claimant’s belief that his injuries are not serious as a ground for excusable delay in filing claim for compensation is not affected by the fact that almost constant pain and suffering has existed sinсe the date of injury. See Harkey v. Texas Employers’ Ins. Ass’n, supra. It is the Court’s duty to bear in mind that the Workmen’s Compensation Act is a remedial statute and should be liberally construed to effectuate its humanitarian purposes and to promote justice. See Huffmаn v. Southern Underwriters,
The record in this cause is voluminous, but we have considered it most carefully. We are of the view that the charge of the Court correctly submitted the issues tendered by the pleadings and the evidence, and we find no error in the charge, and the evidence is sufficient to support the verdict. Each of the other Points in appellant’s *260 brief has been carefully considered, and it is our view that none presents reversible error.
Accordingly, the judgment of the Trial Court is affirmed.