Traders & General Insurance Co. v. McDaniel

305 S.W.2d 659, 1957 Tex. App. LEXIS 2046
CourtCourt of Appeals of Texas
DecidedSeptember 27, 1957
DocketNo. 6137
StatusPublished
Cited by3 cases

This text of 305 S.W.2d 659 (Traders & General Insurance Co. v. McDaniel) 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
Traders & General Insurance Co. v. McDaniel, 305 S.W.2d 659, 1957 Tex. App. LEXIS 2046 (Tex. Ct. App. 1957).

Opinion

HIGHTOWER, Justice.

The jury verdict resulted in a judgment for appellees for full death benefits under the Workmen’s Compensation Law. Vernon’s Ann.Civ.St. art. 8306 et seq. Of appellant’s nine points of error, the first four complain of the insufficiency of the evidence to sustain the jury’s findings that the deceased sustained an accidental injury, and that death was the natural result thereof.

Gregor McDaniel, the deceased, was an employee of the City of Timpson, Texas. Part of his duties consisted of climbing electric light poles for the purpose of refusing transformers and hanging service lines and meters. Immediately prior to his death he was thought, by his intimate acquaintances, to be a man of good health; robust, muscular, active and able. The petition alleged that over-exertion on the job occasioned a heart attack, or coronary thrombosis and coronary occlusion, causing his death. The mayor of Timpson testified that on November 13, 1955, the deceased, equipped with climbing spurs ascended some 30 or 35 feet of a power pole for the purpose of repair work thereon; that he completed the work and descended the pole in the total time of 6 to 8 minutes; that after the deceased got off the pole and walked toward the mayor for about 10 feet he stated, “I am hurting enough to kill me”; that shortly thereafter he was dead. The mayor further testified that one could climb a pole with these climbing spurs, “just like climbing stairs”. Another of appellant’s witnesses stated that there was no strain in climbing a pole by this method. Two other witnesses testified of complaints of indigestion by the deceased two days prior to his death.

Dr. Devine, appellees’ witness, examined the deceased shortly after his death and signed the death certificate as coronary thrombosis being the cause of death. On the trial he stated that, after reconsideration, he was of the opinion that death was the result of a coronary occlusion; that he was of the opinion that the climbing of the pole 30 or 35 feet, using spikes, was extraordinary physical exertion requiring more energy than using a maul or hammer breaking concrete; that the exertion was the cause of the coronary occlusion; that, “there isn’t any question in my mind that climbing the pole certainly precipitated the [661]*661coronary occlusion”; that a heart attack does not usually occur in the absence of some pre-existing disease or abnormality.

On cross-examination Dr. Devine stated that he knew of no prior cardiac pathology of the deceased; that had he had prior heart trouble he would say he died from thrombosis; that had there been a history of complaints of indigestion a short period before his death, his opinion would be that death was possibly due to a coronary thrombosis; that it could be entirely possible, had a thrombosis been forming in the coronary artery, that death would have occurred at the time it did with, or without, the activity of climbing the pole.

In connection with this testimony the appellant makes the argument that the doctor’s opinion is based first on an assumption that the deceased was engaged in excessive exertion or strain, and based upon the further and false presumption that the deceased did not have previous complaints of indigestion; that there is thus a stacking of one inference upon another and secondly, the basis for the doctor’s opinion that deceased died as the result of a coronary occlusion is destroyed by the evidence of a prior complaint of indigestion ; that although there is testimony reflecting what the deceased was doing immediately prior to his death, the doctor had to assume that this was excessive exertion as the basis of his opinion; that the evidence does not support this assumption by the doctor.

We are unable to agree with the appellant’s construction or interpretation of the testimony. The witness’s opinion that the work in which the deceased was engaged at the time of his death was such as entailed more than ordinary physical exertion is undoubtedly a matter of medical knowledge. We would not hesitate to say it is a matter of such common knowledge that a court might take judicial notice of it. Whether it may have precipitated the heart attack is another thing. The witness said that it did. The weight and credibility of his testimony was for the jury to determine. The appellant has apparently failed to consider that this witness had previously stated on cross examination that he based his opinion of the coronary occlusion upon various objective manifestations at the time of examination of the deceased, one being that the body was cyanotic, evidencing a bluish or purplish discoloration of the skin due to lack of oxygen in the blood stream. Again, the conflict, if any, was for the jury’s determination. We hold the evidence amply establishes the appellees’ theory of death resulting from an accidental injury in the course of employment by reason of overexertion and strain. Texas Employers’ Ins. Ass’n v. Talmadge, Tex.Civ.App., 256 S.W.2d 945, n. r. e., and cases cited. Appellant’s first four points are overruled.

On re-direct examination Dr. De-vine was asked to give his opinion, “from what you learned about it, doctor, as to what brought on his death”. Objection was made by appellant, which was overruled, that counsel for appellees was attempting to set out a hypothetical question which did not state the basis for such opinion, the witness replied that he felt that the deceased’s occupation contributed to a certain extent to the cause of his death. This objection of appellant’s is assigned as its fifth point of error.

There appears to be no error of any consequence. This witness had previously testified without this objection that he thought in all probability the deceased’s occupation more than likely had something to do with his death; that there was not any question in his mind that climbing the pole certainly precipitated the coronary occlusion. At most the statement was cumulative and harmless. Newton v. McCarrick, Tex.Civ.App., 75 S.W.2d 472, writ dism.; Pure Foods Products v. Gibson, Tex.Civ.App., 118 S.W.2d 925, writ dism., 17 Tex. Jur., p. 371, sec. 126; 41 Tex.Jur., pgs. 901, [662]*662931, secs. 141, 161. Moreover, the circumstances surrounding the death are undisputed in the record which clearly establishes the nature of the work in which the deceased had been engaged to be the only basis of the doctor’s opinion. Appellant’s fifth point is overruled.

In connection with the 6th and 7th assignments of error, it is noted that the appellees, pleading alternatively, alleged that should it be shown that the deceased had pre-existing bodily infirmities, that the same were aggravated, accelerated and lighted up by the injury as first alleged, all of which naturally resulted in the death of the deceased. In its charge the trial court defined “injury” as “is meant damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the lighting up, acceleration or aggravation of any disease previously existing, by reason of such damage or harm to the physical structure of the body.”

By its 6th point the appellant contends that there was no evidence of any pre-exist-ing condition.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Blair v. INA of Texas
686 S.W.2d 627 (Court of Appeals of Texas, 1984)
Mountain States Mutual Casualty Company v. Redd
397 S.W.2d 321 (Court of Appeals of Texas, 1965)
TEXAS EMPLOYERS'INSURANCE ASSOCIATION v. Jenkins
357 S.W.2d 475 (Court of Appeals of Texas, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
305 S.W.2d 659, 1957 Tex. App. LEXIS 2046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/traders-general-insurance-co-v-mcdaniel-texapp-1957.