Texas Employers Ins. Ass'n v. Shifflette

91 S.W.2d 787

• Court: Court of Appeals of Texas
• Decided: January 11, 1936
• Docket: No. 11856.
• Status: Published

Opinions

JONES, Chief Justice.

This is a workman’s compensation suit, in which A. H. • Shiffiette is the deceased employee; Mrs. Byrde Shiffiette, appellee and surviving wife of deceased, is the only beneficiary under the statute; the Fant Milling Company of Sherman is the employer; and the Texas Employers Insurance Association, appellant, the compensation carrier. The case was tried to a jury, all disputed issues of fact were found in favor of appellee, and judgment for appel-lee was entered in a lump sum for the statutory amount. An appeal has been duly perfected to this court, and the following are the necessary facts:

The suit was filed by appellee in a district court of Grayson county, to cancel an award of the compensation board. All necessary statutory steps were taken before the board, and also after the award, to give the district court jurisdiction of the case.

At the time of his death, deceased was an assistant to the head miller of the Fant Milling Company. This position he had occupied a little less than a year. For several years previous, he had been the head miller, but because of his failing health he became physically unable to perform such duties and was demoted to the position of. second miller, or assistant to the head miller. The cause of his failing health was a disease of the heart known as myocarditis. This disease is described as an inflammation of the tissues of the heart muscle, generally caused by some infection in the system. The heart muscle consists of a large number of small tissues, differing from other muscle tissues only in their strength. The disease is practically incurable, but death from such disease may be warded off and life prolonged by patient observing proper care against violent exercise, taking a proper diet, and medical treatment. Death resulted to deceased from this disease at about 2 a. m. September 1, 1931. One of the main controverted issues is whether the death resulted solely from the heart disease, or was contributed to and hastened by an injury suffered by deceased while at work, in the scope of his employment, on the forenoon of August 31,. 1931.

The mill building embraced six floors and deceased was furnished an office on the fourth floor. His duties as assistant? to the head miller carried him to the first four floors of the building. There was a passenger elevator running from the lower floor to the other floors of the mill, but on the day in question, such elevator was out of repair and could not be used until about 1 p. m. of the day in question. There was a freight elevator in the mill, running from the lower to the other floors of the building, but under the mill regulations no employee was allowed to be a passenger on this freight elevator. At approximately 9 a. m. deceased was seen by Austin, superintendent of the mill, on the first floor in the freight elevator. In response to question by Austin, deceased told him that it was necessary for him to go at once to the fourth floor, that the passenger elevator could not be operated, and that he was unable to climb the stairs; he was forbidden by Austin the use of the freight elevator and told either to go home and stay there until he was able to work, or to go up to the fourth floor and stay in his office until such time as he was able to work. Deceased left the elevator, was later seen .on the landing of the first flight of stairs, going to the second floor; later seen on the third and fourth floors. All of the witnesses, except one, who saw him during this forenoon, described his appearance as being the same as usual. This one witness testified that he looked “kinda puny.” No witness testified to any complaint of suffering made by deceased that forenoon. He was seen just as he was leaving the mill to go home to his lunch, and was described by such employee as looking cheerful and talking about when he and the witness could go dove hunting; the-dove season opening the next day. That deceased mounted the stairs during this forenoon from the first floor to the fourth floor is definitely established by the evidence.

Deceased traveled from his home to and from his work by using his automobile. On the day in question, he left the mill at about 1 p. m. in his automobile, and arrived at his home about 1:15 p. m. When he returned from his work at noon, his usual custom was to park the car in the front of his residence, but on this occasion appellee noticed that he drove into the driveway instead, and stopped the car just opposite the window near where she was sitting, and she at once went to the car, where she found him pale, his features drawn, gasping for breath, and the appearance of suffering great pain. She asked him what was the matter, and he replied: “ ‘My heart,’ and he says, T had — the manlift was out and I had to rush up those steps and I fell and it hurt me.’ ” Appellee assisted deceased out of the car, into the house, and onto a bed, where he continued for some time to gasp for breath, and apparently continued to suffer great pain. She bathed his face and chest with cold water, and in about forty minutes he apparently recovered. She noticed that, over the region of the heart, there was a small blue discoloration. After deceased had recovered at his home from his gasping for breath and suffering of pain, he went back to work that afternoon. Again he was seen just before he left the mill at 6 p. m.; he seemed to be cheerful, and no witness testified that any complaint of suffering was made. However, when he arrived home, he presented somewhat the same appearance as he had at noon, was put to bed, continued to suffer intermittently, and died about 2 a. m. The discoloration noticed by appellee at noon had increased, both as to color intensity, and as to the amount of surface covered, and continued to increase until death intervened, at which time it covered the whole surface region over the heart and extended considerably beyond.

The specific injury alleged is an injury to the heart caused by the violent exertion of climbing the stairs to the fourth floor of the building, in that this exertion placed a heavy strain upon the heart, and that in its weakened condition, the tissues of the muscle of the heart were caused to give way and death resulted as the proximate cause of this exertion. The effect of the answer of appellant is that the death of deceased was not caused by overexertion, but was the natural result of the heart disease from which deceased had been a long sufferer. The pleadings of both parties are sufficient basis for all of the questions raised on this appeal, and it is not deemed necessary to state the pleadings more fully.

Two serious questions are raised by appellant that require close consideration by this court: (1) That the evidence fails to show that deceased died as a result of any injury received while working in his employment; and (2) if there be any evidence sustaining appellee’s contention that deceased’s death resulted from an injury received by reason of an undue strain on his heart, because of his being compelled to climb the stairs, such evidence was hearsay and self-serving and erroneously admitted over proper objections of appellant and cannot form a legal basis for the submission of any issue to the jury, or a legal basis for any findings of the jury, or the entry of a judgment thereon. These contentions of appellant are properly presented in an able brief, and will be considered in the order above named. In line with these contentions, appellant timely present-, ed a request for peremptory instruction, timely objected to the submission of any issues to the jury, and has properly assigned error on the adverse rulings of the court.

The following is the submission of the case on special issues and the verdict of the jury on each issue:

“No. 1: Do you find from the preponderance of the evidence that A. H. Shifflet-te, deceased, sustained an accidental injury on August 31st, 1931, while in the course of his employment for the Fant Milling Company? Answer: Yes.” In connection with this charge, the court correctly defined the term “accidental” and gave the statutory definition of the term “injury.”

“No. 2: Do you find from the preponderance of the evidence that the accidental injury, if any, sustained by A. H. Shifflette, the deceased, at the time in question, contributed to bring about his death? Answer: Yes.

“No. 3: Do'you find and believe from the evidence that the death of A. H. Shifflette, deceased, arose out of and was caused solely by an existing diseased condition of his heart, without having sustained any accidental injury at the time in question? Answer: No, it was not caused solely by an existing diseased condition of the heart.” In connection with this issue, the jury was specifically instructed that the burden was upon the plaintiff to establish the negative of this special issue by a preponderance of the evidence.

“No. 4: Do you find from the preponderance of the evidence that manifest hardship and injustice will otherwise result to plaintiff if a lump sum settlement be not made ? Answer: Yes.”

The findings of the jury are supported by substantial evidence, and are adopted as the findings of this court on the respective issues submitted.

Was it error to refuse appellant’s request for peremptory instruction in its favor? It would be error, if the jury finding, to the effect that deceased sustained an accidental injury on the occasion in question, is not supported by substantial evidence. In this connection, it must be borne in mind that the question presented by the pleadings and evidence is not whether the alleged injury received was the sole cause of deceased’s death, but rather: Did the injury contribute to cause his death? Texas Employers’ Ins. Ass’n v. Lovett (Tex.Civ.App.) 19 S.W.(2d) 397; Texas Employers’ Ins. Ass’n v. Jimenez (Tex.Civ.App.) 267 S.W. 752; Texas Employers’ Ins. Ass’n v. Parr (Tex.Com.App.) 30 S.W.(2d) 305; Texas Compensation Ins. Co. v. Ellison (Tex.Civ.App.) 71 S.W.(2d) 309. The evidence warrants the finding that, on the occasion in question, deceased, in order to perform the duties of his employment, was compelled to go up the stairs, rather than take his usual method of going up in the elevator, and. that because of the unusual strain on the weakened and diseased muscle of his heart, one or more of the small tissues of the heart muscle suffered a rupture, causing a hemorrhage ; this in turn placed another heavy strain on the heart, which resulted in another rupture; and death finally resulted. The medical testimony offered by appellee' clearly warrants the finding of the jury on this issue of injury. The Workmen’s Compensation Act, in its definitions, given in article 8309, R.S., declares that: “The terms ‘injury’ or ‘personal injury’ shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” This is broad enough to include the injury herein considered.

It is true that deceased was suffering from myocarditis, which, in its advanced stage, might result in death to the sufferer at any time. The medical testimony offered by appellant is to the effect that one suffering from this heart ailment in its earlier stages is able to do ordinary work with safety to himself, but that in the advanced stages of this disease such a sufferer cannot do such work. The evidence is undisputed that deceased had been doing regularly, day after day, for about a year, the duties that had been placed upon him; hence, we find that the disease was not in its advanced stage, and that at the time deceased was required to go up the stairs, in order to perform his duties, for the reason that he was not allowed the use of the freight elevator, a fatal termination of the disease was not imminent.

Dr. Craig, giving expert testimony, after he had qualified as a competent physician and surgeon, in answer to a hypothetical question covering the facts, testified: “Well, I would say from the way-you have described that, that by reason of the fact that his heart.muscle was subjected to a strain, running up those stairsteps, and it throwed more weight on the heart muscle, that some of those little fibers, that I just described to you awhile ago, ruptured, that is they were destroyed and broke in two * * *. When any of the little fibers are ruptured in any way there will be a certain amount of hemorrhage, say that no more than one of them was ruptured, there would be a certain amount of hemorrhage there and this blood would .reach out and create a congestion, or in other words even a little small one would set up an irritation and cause a further strain on the heart and cause more of the little fibers to rupture, and that is why death was delayed because they just broke one by one.” This witness also testified that the rupture of one or more of the tissues of the heart muscle "vyould cause a weakness, great pain, a gasping for breath, and the discoloration named. We find that the exertion of climbing the stairs caused the first rupture in the heart muscle, and this produced the force that culminated in death.

We therefore find that the finding of the jury, to the effect that deceased sustained an injury on the occasion in question while in the course of his employment, is sustained by the evidence, and that the further finding that such injury contributed to bring about his death is also sustained by the evidence. For the same reason and on the same testimony, the jury’s finding, to the effect that deceased’s death was not caused solely by an existing" diseased condition of the heart, is likewise sustained by the evidence, and that the court did not err in overruling the request for peremptory instruction.

Was there an abuse of discretion by the trial court in admitting, over appellant’s timely objection, the statement made by deceased to appellee on his return to his home at noon? The trial court admitted this statement under the somewhat obscure doctrine of res gesta, for otherwise the statement would be self-serving and hearsay. The question of the admission of evidence, as a part of the res geste, is one of law, and must be determined in the first instance by the trial court. Southern Surety Co. v. Weaver (Tex.Com.App.) 273 S.W. 838, affirming (Tex.Civ.App.) 260 S.W. 622. The admission of particular evidence under the res geste rule rests largely in the discretion of the trial court. International Travelers’ Ass’n v. Griffing (Tex.Civ.App.) 264 S.W. 263; Panhandle & S. F. Ry. Co. v. Laird (Tex.Civ.App.) 224 S.W. 305; Missouri, K. & T. R. Co. v. Anderson (Tex.Civ.App.) 198 S.W. 795; Pilkinton v. G., C. & S. F. Ry. Co., 70 Tex. 226, 7 S.W. 805; International & G. N. R. Co. v. Smith (Tex.Sup.) 14 S.W. 642; Panhandle & S. F. R. Co. v. Huckabee (Tex.Civ.App.) 207 S.W. 329.

“The res geste has been defined as those circumstances which are the automatic and undesigned incidents of a particular litigated act,' and which are admissible ■ when illustrative of such act,” and as “the whole of the transaction under investigation, and every part of it.” 17 Tex.Jur. p. 613, § 256, and authorities cited in notes. The res geste differs according to the circumstances of the particular case. Pilkinton v. G., C. & S. F. Ry. Co., 70 Tex. 226, 7 S.W. 805; Southern Surety Co. v. Weaver (Tex.Com.App.) 273 S.W. 838. In determining whether evidence is admissible under the rule, each case must be tested by its own peculiar facts, and decisions in other cases cannot be made the guide except in their expressions of general and fundamental rules governing the doctrine. 17 Tex.Jur. 615-617, and authorities cited in notes.

The modern tendency of cases is to extend the res gesta doctrine in the admission of evidence beyond its one-time narrow limits. Evans v. McKay (Tex.Civ.App). 212 S.W. 680, 688; 10 R.C.L. 974. This tendency to broaden and enlarge the scope of the rule of res gesta is but the giving of concrete application to another modern announcement of the law of evi dence that, “The question is not now, how little, but how much, logically competent proof is admissible.” 10 R.C.L. p. 976, § 158.

While it is true that, in determining the admission of proffered testimony under the res gestas rule, each case must stand on its own particular facts, yet there are • certain safeguards that must be taken into consideration, and not transgressed in any case: (1) To bring a declaration within the res gestas' rule, such declaration must be connected with, and arise out of, the transaction which is the subject-matter of the inqrury. The proffered statement may be separated from the act or transaction by a more or less appreciable period of time, but it must stand in immediate causal relation to it. It must be either a part of the transaction or made under such circumstances as to raise a reasonable presumption that it is a spontaneous utterance of thought created by, or arising out of, the transaction itself. 17 Tex.Jur. 618, § 259, and authorities cited in notes. (2) Again, to come within the rule, the statement must not only be a spontaneous utterance of thought, created by or springing out of the transaction itself, but must be such as to exclude the idea of premeditation. The facts attending the statement must lead to the reasonable conclusion that the statement offered in evidence was made under such circumstances that reason and reflection are not dominant, but that the statement was made from impulse. 17 Tex. Jur. 620, § 261, and authorities cited in notes. (3) The authorities above cited show that, while time is an important element in determining the question of spontaneity, it is not controlling, and is perhaps secondary to the condition of the declarant at the time the statement is made. Two important elements in reference to the admission of the statement are: (a) Was the declarant suffering great pain at the time the statement was made? And (b) did death from the injury follow soon after making the' statement? Western Union Tel. Co. v. Brown (Tex.Civ.App.) 297 S.W. 267; International Travelers’ Ass’n v. Griffing, supra.

The trial court’s ruling, on the admission of this statement in evidence, is to be judged by the principles above' discussed, and if the facts show such principles obtained, then there was no error. To give effect to the findings of the jury and the evidence supporting same, it must be considered as a fact that deceased’s injury was primarily caused by the heavy strain on his heart, produced by the violent exercise of climbing three flights of stairs. Under the diseased condition of his heart, and by reason of this strain on it, there occurred a rupture of one or more of the tissues of the heart muscle. This could have happened when deceased fell exhausted while climbing the stairs, or it could have happened some time after the exertion. Under the medical testimony, a rupture of one tissue would put an additional strain upon his heart, which, in turn, would rupture another, and that there was a repeated rupture of a sufficient number of these tissues to cause death. In other words, the fatal ruptures were progressive and not simultaneous. It appears to be reasonably certain that, on his noon arrival at home, he was suffering from an immediate rupture of one of these heart tissues. In the throes of this suffering, he made the declaration to his wife that, “My heart — ”• and then stated that he had to walk up the stairs, that he fell, and it hurt him. This statement appears to have been the outburst of a thought that was uppermost in his mind at the time. It was made to his wife as explanatory of his physical condition. It is connected with, and arose out of, the happening which is the subject-matter of inquiry in this suit, and it stands in immediate causal relation to such subject-matter. It has all of the elements of a spontaneous utterance, as shown by the circumstances under which it was made and the person to whom it was made; the facts exclude the idea of premeditation. It appears that the particular facts of this case bring the statement of deceased within the general rules laid down for determining its admissibility, and we conclude that the trial court did not abuse its discretion, in overruling appellant’s objections and in admitting the ■statement as evidence under the res gestas rule.

The evidence raised the issue of appel-lee’s right to a lump sum settlement, and the court, in special issue No. 4, submitted such question to the jury, and the jury answered that appellee should have a lump-sum settlement. While the jury was discussing this issue, and before a verdict on it had been reached, the jury, through its foreman, submitted the following written inquiry to the court: “Your Honor: We are in doubt in regard to Issue No. 4. In case she (appellee) is paid' in weekly in- ■stallmcnts, and in case of death, does the policy become void, and all payments stop? or in other words say her premium would be $2000 in lump sum, but we made this into installments, and she should die within one month, would she receive the balance from the four weeks payments?” In response to which the court charged the jury: “The matters that you inquire about, under the charge of the court, are no concern of the jury. You will please answer Special Issue No. 4 as you find from the evidence, and under the charge of the court.” The jury returned to a consideration of the case and later returned a verdict on all of the issues submitted. Whatever comments are shown to have been made by members of the jury, in their consideration of this issue, as shown by the record, do not show reversible error, and we overrule this assignment.

It follows that, in the opinion of the majority of this court, this case should be affirmed, and it is so ordered.

Affirmed.