Lindley v. Transamerica Insurance Co.

437 S.W.2d 371, 1969 Tex. App. LEXIS 2635
CourtCourt of Appeals of Texas
DecidedJanuary 24, 1969
DocketNo. 16985
StatusPublished
Cited by2 cases

This text of 437 S.W.2d 371 (Lindley v. Transamerica Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lindley v. Transamerica Insurance Co., 437 S.W.2d 371, 1969 Tex. App. LEXIS 2635 (Tex. Ct. App. 1969).

Opinion

OPINION

RENFRO, Justice.

Suit was brought against Transamerica Insurance Company by Mrs. Edwin Wayne Lindley, widow of Edwin Wayne Lindley, for Workmen’s Compensation benefits. It was alleged that Lindley, while acting within the scope of his employment, sustained an accidental injury which resulted in and/or contributed to his death on December 8, 1966.

[373]*373Defendant denied that Lindley suffered an accidental injury; that his death had any connection with traumatism either from the standpoint of causation or aggravation, and plead that Lindley’s death was brought about by heart disease and natural causes, entirely unrelated to trauma or his employment.

Following a hearing on a motion by defendant for summary judgment the court found an absence of genuine issue of any material fact and rendered judgment that plaintiff take nothing.

By appropriate points of error plaintiff argues that defendant failed to meet its burden of proof there was no disputed fact issue, hence, the trial court erred in granting summary judgment on defendant’s motion.

In reply to defendant’s motion for summary judgment plaintiff presented an affidavit by Lindley’s son, Melvin. In part, he stated, “On November 21, 1966, * * * my father returned from work * * *. When he came in he looked bad and told me * * * that afternoon he had been doing some pretty hard work lifting forms and pulling nails and that late in the afternoon he felt weak all over and had a headache and had to rest for about twenty or thirty minutes * * * (that he took) a couple of aspirin. * * * When he walked into the house his face was white as a sheet * * * he did not want any supper * * * his arms were so heavy and * * * aching * * *. He had been complaining of pain in his chest but around 9:00 o’clock he complained the chest pains got really severe, * * *.” He arrived at the hospital about 10:00 o’clock.

By affidavit, Dr. Wilson, heart specialist, swore “Assuming that during the afternoon of November 21, 1966, * * * Lind-ley was engaged in work requiring that he lift weignts of fifty pounds and work requiring that he ‘knock down forms’ (and by that I understand he was required to pull nails from the forms making the forms so that they would become disengaged), and further assuming the statements contained in the Affidavit of Melvin Lindley to be fact, and further assuming the diagnosis and cause of death are as contained in the hospital records, it is my opinion based upon reasonable medical probability that while the late * * * Lindley was engaged in his work for his employer * * * November 21, * * * he sustained a physical harm to his body, * * * and which injury superimposed upon the probably long standing disease of arteriosclerosis contributed to and was a producing cause of his death on December 8, 1966.”

D. P. Thompson testified by deposition: He is half owner of Henderson, Henderson and Thompson, contractors. Lindley was working for him on November 21, 1966. Lindley was removing forms from concrete most of the day. He used a nail bar and a hammer to pull the nails and remove the forms. The forms being used weighed 50 pounds. There was always a certain amount of jerking and tugging to get a form loose. After getting a form loose Lindley would “hand them up to someone on top.”

T. L. Thompson by deposition testified: He is a brother of D. P. Thompson, and was employed by Henderson, Henderson and Thompson. He was working with Lindley on November 21. They were pouring eight by two forms and pouring concrete, putting the concrete in to hold an earthern dam. Lindley was a hard worker and on that day he was working no harder than normal. Lindley was tugging and removing forms. The forms probably weighed 50 pounds. He doesn’t know how many Lindley removed that day. “He might have lifted two and he might have lifted ten.” Shorty (Lindley) said he had the awfulest headache he had had in a long time. “I was sitting right beside him. I went to the pickup and got him a couple of aspirin.” When he said that he was “Just standing there talking to me. * * *” He had complained of headaches before. [374]*374He made no other complaints, went right back to work. He looked normal. Lindley had the headache about the middle of the afternoon. He worked until S :30 or 6:00. Upon quitting Lindley said he felt better.

The certificate of death shows immediate cause of death to be coronary thrombosis due to arteriosclerosis.

The complete hospital records were on file through deposition of proper custodian.

By deposition Dr. J. L. Roan testified: He saw Lindley around 9:00 on the 21st in the hospital where he was complaining of severe chest pains radiating into his arms and elbows. In the doctor’s opinion he was having a heart attack. He died on December 8 with miocardial infarction. He first saw Lindley in 1962 and treated him for a blood clot on the lung. He has no history of any other illness or ailment. Leading up to his death Lindley had arteriosclerosis. The hardening of the arteries slowed down the passage of blood and set up a clot process. He has no medical evidence that Lindley’s death was from over-strain or overexertion. In his opinion no other condition contributed to the cause of death; the hardening.of the arteries, enclosing of the arteries was a natural process and the clot that formed on the 21st of November was a natural process of the hardened arteries that were narrow, the blood flowing through them and the clotting, and his subsequent death. He does not believe that when a person has a preexisting condition of arteriosclerosis that overstrain or overexertion can precipitate a coronary thrombosis.

Under Art. 8309, Vernon’s Ann. Civ.St., a compensable injury includes not only damages or harm to the physical structure of the body but such diseases or infection as naturally result therefrom. Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Tex.Civ.App., 1947, ref., n. r. e.). An injury may be compensable, even though aggravated by an existing disease, or by a disease. But of course there must be proven a causal connection between the accident and the ultimate death or disability. This connection must appear from facts proven from which such connection may be reasonably inferred. Dotson v. Royal Indemnity Company, 427 S.W.2d 150 (Tex.Civ.App., 1968, ref., n. r. e.).

In support of the summary judgment defendant contends, (1) There is no evidence of injury caused by strain or overexertion on the job, and (2) no fact issue was raised by the doctors’ affidavits. These contentions are based largely on its argument that the affidavits of Melvin Lindley and Dr. Wilson are based on hearsay and are inadmissible.

The duty of a court hearing a motion for summary judgment is to determine whether there are any issues of fact raised, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. The underlying purpose of Rule 166-A was elimination of patently unmeritorious claims or untenable defenses; not being intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. The burden of proving that there is no genuine issue of any material fact is upon the mov-ant, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Gulbenkian v. Penn, 151 Tex.

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Bluebook (online)
437 S.W.2d 371, 1969 Tex. App. LEXIS 2635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindley-v-transamerica-insurance-co-texapp-1969.