Fidelity & Casualty Co. of New York v. McKay, 7305.
| Decision Date | 24 November 1934 |
| Docket Number | No. 7305.,7305. |
| Citation | 73 F.2d 828 |
| Parties | FIDELITY & CASUALTY CO. OF NEW YORK v. McKAY et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Allen R. Grambling, of El Paso, Tex., for appellant.
W. H. Fryer and Robert E. Cunningham, both of El Paso, Tex., for appellee.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
Custer B. McKay in litigation over an award of compensation under the Texas Workmen's Compensation statute (Rev. St. Tex. 1925, art. 8306 et seq., as amended), obtained judgment against the insurer, Fidelity & Casualty Company of New York, and the latter appeals, complaining that the application for compensation was barred when filed and that the court erred in permitting a hypothetical question as to the cause of McKay's condition and that a verdict should have been instructed because the evidence showed McKay's condition to be due to disease and not to an industrial accident.
It was testified that on September 29, 1930, November 19, 1931, and December 20, 1931, McKay was "gassed" into unconsciousness by sudden and unusual occurrences in the smelting processes of his employer, the Nichols Copper Company, each of which occurrences was known at the time to the employer. After the last gassing McKay, though said by the Company's physicians to be ready to go back to work, was by his own consent and for the purpose of rest and recuperation put temporarily on a job as watchman at about 10 per cent. less wages. He continued to have pains in his chest and around his heart, and in June, 1932, his own physician, Dr. White, advised that his heart was involved but thought it might get better. In August Dr. White concluded that McKay was totally and permanently disabled because of his heart, and he has done no work since. The company's and insurer's physicians further examined him during October, and on November 25, 1932, claim for total and permanent disability was made to the Industrial Accident Board, which allowed the claim.
The limiting statute is article 8307, § 4a, Rev. Stats. of Texas of 1925, which provides that The Texas courts have held that the occurrence of the injury does not mean the...
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