(dissenting).
I respectfully dissent. The Court propounds the question: “Did good cause for failure to file the claim continue to exist from the middle of July, 1962, until the claim was filed on November 13,1962?” Then the Court concludes that the answer to the question turns on the degree of diligence used to get the claim filed.
The question and the rule announced as being controlling has placed Beasley’s case in an entirely different light than the record reflects. The Court has failed to consider the evidence most favorable to the finding of the jury on the issue of good cause. The trial court heard the evidence on the issue of good cause. The evidence which will be discussed later afforded the basis for the submission of Special Issues number 17 and 18.1 These issues were answered in the affirmative. The jury found that Beasley believed up until November 13, 1962, the. date the claim was filed, that the operation in May, 1961, “would so repair the personal injuries sustained by him, if any, on April 11, 1961, that he would not sustain any serious disability after he recovered from the operation.” The jury found that such belief constituted good cause.
The statute does not define “good cause.” The trial court defined “good cause” as meaning “whether or not the cross-plaintiff, Miles Clifford Beasley, in the prosecution of his claim for compensation, used that degree of diligence which a man of ordinary and reasonable prudence, situated as was the cross-plaintiff, would have used under the same or similar circumstances.” This definition meets the test announced by the *37courts in such cases as Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948); Consolidated Casualty Insurance Co. v. Perkins, 154 Tex. 424, 279 S.W.2d 299 (1955); and Hartford Accident & Indemnity Co. v. Hardin, Tex.Civ.App. (1952), 252 S.W.2d 752, writ refused. The Hawkins and Hardin cases also hold that ordinarily whether the claimant has used the degree of diligence required is a fact issue, and that the question “may be determined against the claimant as a matter of law only when the evidence, construed most favorably for the claimant, admits no other conclusion.” It has been well recognized at least since the case of Texas Employers Ins. Ass’n v. Guidry, 128 Tex. 433, 99 S.W.2d 900 (1937), that the period of six months provided in the statute for the filing of a claim with the Industrial Accident Board begins to run on the date of the injury.
The strict provisions of Article 8307, § 4a,;2 that notice of injury must be given within 30 days, and claim for compensation for injuries shall be made within 6 months were not invoked before the Industrial Accident Board. The Board entered its award in favor of the claimant, and Texas Casualty appealed from the adverse order of the Board to the District Court. In the District Court, Beasley, as cross-plaintiff, pleaded that “good cause” existed for his failure to file his claim prior to November 7, 1962, the date formal claim was filed. Beasley has discharged his burden if the Court will follow the rule that only the evidence most favorable to Beasley is to be considered. If there is some evidence that the claimant exercised some care and prudence, then the verdict of the jury on the issue of good cause and the judgment of the trial court should be upheld. This court has no power to substitute its judgment for that of the trier of the facts.
The Court assumes, without deciding, that “good cause” existed from April 11, 1961, to July, 1962. I take the position that good cause existed continuously until he filed his claim. Prior to the operation, Beasley went to Dr. Dansby, who first saw him on April 21, 1961. Beasley first saw Dr. Hoerster within a day or two after the accident. Dr. Dansby said that an X-Ray diagnosis enabled him to determine that Beasley was suffering from a herniated disc between the 4th and 5th lumbar vertebrae, and referred Beasley to Drs. Hinchey and Day at San Antonio, who found that the spinal cord was involved and referred Beasley to Dr. Ralph Munslow, a neurosurgeon. Dr. Munslow advised Beasley to return to Llano and enter the hospital and be “treated with traction to see if he could get relief in that manner.” Beasley returned to Dr. Dansby who hospitalized him and applied traction. This treatment afforded no relief, and the operation followed. Beasley was told before the operation that he would be “good as new” and that he believed the doctors. Dr. Dans-by testified that Dr. Munslow was “highly optimistic” about Beasley’s recovery. There is no evidence that Dr. Munslow ever at any time changed his opinion, or that Dr. Dansby changed his opinion within the time he was “seeing” Beasley. Beasley testified that he did not want to file a claim if he was going to “get all right,” and that in July, 1962, he had some misgivings about whether he was going to get well or not. He testified that when he returned to the hospital in July, *381962, he was put in traction; that he did not know whether the “traction” gave him relief or “just lying there.” He said he did get some relief. It should be noted that there is no testimony that the doctor or anyone at the hospital or any place told him that he would not get well. The jury could have concluded from the fact that the doctor put Beasley in traction in July, 1962, that he, the doctor, still believed Beasley could recover. The doctors gave no indication that Beasley would not recover until December, 1962. These facts are sufficient to support the finding that “good cause” was shown up to November 7, 1962. There is no evidence that any of the doctors ever told Beasley at any time prior to November 7, 1962, that he would not get well. The claim was filed on this latter date, and it was not until December, 1962, that Dr. Henry Hoerster said he thought Beasley had some disability. The fact that Beasley, in July, 1962, had some “misgivings” about recovering is not conclusive that he was not still relying upon his doctors’ statements that he would in time be as good as new. Beasley was not a malingerer but to the contrary his every act was calculated to save money for the insurer. The cost of an operation and the expenses incident thereto were far less than the award for total and permanent disability in this case.
The facts in this case are much stronger in support of continuous good cause than the facts relied upon in any of the good cause cases referred to herein. It is true that Beasley knew he should file a claim, but he also knew that he had been told by the doctors who operated that he would be as good as new after the operation. Beasley knew from the beginning that his injuries were serious, but he had been told he would be a new man after the operation. My position is that Beasley acted as a reasonably prudent person in submitting to the operation after being told by the doctors that he would be a “new man” after the operation and that he had the right to rely upon such representation until he filed his claim on November 7,1962, even though he had some “misgivings” about getting well.
In the Hardin case, supra, the claimant believed that her injuries were trivial. The Court, in effect, held that the claimant did not have a bona fide belief which would lead an ordinarily prudent person to believe that his injuries were trivial and temporary. No doctor told the claimant, Mrs. Hardin, that she would be well. To the contrary, a doctor executed a certificate in which he stated “the patient had been continuously disabled, and ‘according to history discontinued work January 19, 1951.’ ” In the Perkins case, supra, this Court held that “good cause” had not been shown. The facts reflect why we so held. We held that Perkins knew the law and could not rely upon a promise made some four months after the accident. The facts there are in no wise comparable to the facts presented here which show complete reliance of a patient upon his doctor. He submitted to the operation, confidently believing that he would regain his strength and thereafter continue gainful employment for which he was qualified prior to his injuries. All of the facts were related to the jury, including Beasley’s anxiety and frustration in regard to the filing of his claim.
Texas Casualty desired to minimize the claim by paying for an operation, the cost of which would be much less than the amount of recovery by the claimant based upon a finding of total and- permanent disability. On the other hand, Beasley agreed to the operation because he relied upon the representations of the doctor. Since the doctors at no time prior to November 7, 1962, indicated that they had changed their opinion, the jury had ample reason to conclude that Beasley continued to rely upon the doctors until November 7, 1962. It is our duty to construe the evidence most favorably for the claimant and uphold the jury verdict. It was never the intention of the Legislature that the provisions of Article 8307, § 4a be applicable in a situation where the insured has recognized li*39ability to the extent of paying weekly compensation and inducing the injured party to submit to an operation.
The action of the attorneys employed after July, 1962, is in keeping with the history of the relationship between the insured and the insurer. The attorneys were not negligent, but acted as reasonable men would under all the circumstances. Therefore, the rule that the insured is charged with the negligence of his attorney or attorneys cannot be invoked.
The judgment of the trial court and the Court of Civil Appeals should be affirmed.
. “SPECIAL ISSUE NO. 17: Do you find from a preponderance of the evidence that the Cross-Plaintiff Miles Clifford Beasley believed that the operation performed upon him in May, 1961, would so repair the personal injuries sustained by him, if any, on April 11, 1961, that he would not sustain any serious disability after he recovered from the operation?
“Answer, ‘Yes’ or ‘No’
“We, the Jury, answer: Yes
“SPECIAL ISSUE NO. 18: * * * Do you find from a preponderance of the evidence that such belief, if any, constituted good cause as that term is defined herein for the Cross-Plaintiff’s failure to file his claim with the Industrial Accident Board up until the time the same was filed?
“Answer ‘Yes’ or ‘No’
“We, the Jury, answer: Yes”
. “Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of tbe first distinct manifestation of an occupational disease; or, in ease of death of the employee or in the event of his physical or mental incapacity, within six (6) months after death or the removal of such physical or mental incapacity. For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board.”