Aetna Ins. Co. v. Hart

• Citation: 315 S.W.2d 169
• Decision Date: 19 June 1958
• Docket Number: No. 13196,13196
• Parties: AETNA INSURANCE COMPANY, Appellant, v. Mrs. Myrtle Lucille HART et vir, Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 169

315 S.W.2d 169

AETNA INSURANCE COMPANY, Appellant, v. Mrs. Myrtle Lucille HART et vir, Appellees.

No. 13196.

Court of Civil Appeals of Texas, Houston.

June 19, 1958.

Rehearing Denied July 10, 1958.

Ralph S. Carrigan, William C. Bullard, Houston, Baker, Botts, Andrews & Shepherd, Houston, of counsel, for appellant.

Frank T. Abraham, W. James Kronzer, Houston, Hill, Brown, Kronzer & Abraham, Houston, of counsel, for appellees.

BELL, Chief Justice.

This is a workmen's compensation case. A judgment was rendered in favor of appellee, Mrs. Myrtle Hart, based upon a jury verdict finding her to be totally and permanently disabled.

Mrs. Hart worked for the La Rosa Cleaners at one of their substations in the City of Houston. On May 18, 1955, while she was engaged in the performance of her duties, an Air Force officer who had left at the cleaners a pair of trousers to be mended and cleaned came to get the trousers. He had been to the place on two or three occasions before. On one occasion he had become upset because a shirt on which he had had the sleeves shortened had shrunk and he claimed the fault was not in any shrinking but in the alteration. In any event he was, on that occasion, very unpleasant, so that Mrs. Hart dreaded seeing him come to the place after that. When he arrived on May 18 about 2 o'clock p. m., Mrs. Hart was alone in the place of business. She recognized the man as soon as he got out of the automobile. She, because of the previous unpleasantness, dreaded him when she saw him get out of his car. He was a pretty nice looking fellow, 'but sure was a rough looking guy.' He asked for his trousers and when Mrs. Hart got them he took them and 'ripped' the sack off, looked at them and then slung them on the counter at Mrs. Hart. Mrs. Hart said she did not know whether he was going to knock her down or not. As the officer slung the trousers at her he said they were not clean. He spoke short to her. When Mrs. Hart stated she would send them back and have them done over, he stated he needed them. The officer stayed there and kept prancing up and down by the counter. He then reached into his pocket and she didn't know what he was going to do. She didn't know whether he had a gun or not. She thought of there being a back door to the place of business but if she ran out of it he might shoot her. When the hand came out of the pocket he had a $20 bill which he threw down on the counter. Mrs. Hart said she was so rattled she couldn't make the change. He reached over and snatched the $20 bill off the counter and put it back in his pocket. The officer then took the trousers, but before leaving the premises he tore up the statement written for the work done and threw it on the floor. Mrs. Hart said the way the man was talking, she couldn't tell whether he was going to shoot her or not. He was talking rough and rude to her and he frightened her. He had said when she did not make the change, 'This is a pretty outfit, can't change a $20 bill.' This made her feel bad. She thought he was going to hit her with the trousers. While the officer was still there she felt so weak she 'just kind of laid over the counter.' The officer had scared her by the course of conduct above related. Just after the officer left, Mrs. Hart's son came in. The officer had gone but the son came in two or three minutes later. She told him she had just had a run-in with a guy. Dan, the son, walked in the front door of the substation and saw his mother standing at the counter and 'she was sort of slumped over.' She was leaning, from half of her body she was down and the counter was supporting her. Saliva was coming from her mouth and her face was beginning to twist. He could understand her a little bit. He picked her up and out her on a chair. Her face began to draw. He noticed her left leg was limp and extended in a position so it could not be controlled. Her left arm fell off the arm rest of the chair. A doctor was called and he directed that she be taken home.

There is no question under the evidence that Mrs. Hart had a stroke. Also, there is no question that Mrs. Hart is totally and permanently disabled. We have not yet recited the medical testimony, but will do so in connection with the points asserted with respect to it.

The jury answered the four issues submitted to it finding as follows:

1. Mrs. Hart received a personal injury to her body.

2. Such injury was an accidental injury.

3. Such injury was received in the course of her employment.

4. The accidental injury was the producing cause of incapacity.

Appellant, as grounds for reversal, makes the following contentions:

1. There is no evidence, or alternatively there is insufficient evidence, to establish an accidental injury since the encounter with the officer, which gave rise to the emotional stimulus that precipitated the stroke, was merely a personal one involving no assault, battery or wrongful act.

2. There is no evidence, or alternatively insufficient evidence, to establish an accidental injury within the course of employment since the incident precipitating the stroke created no greater hazard than that to which plaintiff would have been exposed apart from the employment.

3. There is no evidence causally relating the encounter to the stroke since such medical testimony is based upon an assumption that at the time of the encounter plaintiff was suffering from high blood pressure, and there is no evidence of probative value establishing that she was suffering from high blood pressure.

4. There is no evidence causally relating the encounter to the stroke suffered by plaintiff bcause the evidence shows it may have occurred by reason of several causes and it is not more reasonably probable that the incident was more operative than other possible causes.

5. There was insufficient evidence to show a causal relationship between the incident and the stroke.

Appellant first contends there was no accidental injury because the stroke suffered by Mrs. Hart was precipitated by an emotional upset arising from a mere personal encounter involving neither an assault, battery or other wrongful act. The basis for such contention seems to be certain language used by our Supreme Court in Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315, 322.

In the Bailey case the Supreme Court held that traumatic neurosis resulting from an emotional stimulus which was produced by an incident involving a risk or hazard of the employment was a damage or harm to the physical structure of the body and compensable under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. The Court, in the course of its opinion, in discussing whether there could be a recovery for traumatic neurosis under our Compensation Act, noted that under the cases of Gulf, C. & S. F. Ry. Co. v. Hayter, 93 Tex. 239, 54 S.W. 944, 47 L.R.A. 325, and Houston Electric Company v. Dorsett 145 Tex. 95, 194 S.W.2d 546, assuming negligence on the part of a defendant, a recovery at common law could be had for physical injury resulting from fright alone, the fright being the product of a defendant's negligent act. The Court then said:

'Another compelling reason to hold that the type of injury sustained by petitioner comes within the definition of 'injury' as contained in the statute is the fact that the Workmen's Compensation Act eliminates the right of an employee to bring an action for damages against an employer subject to the Act, except as provided by statute. The holdings in the Hayter and Dorsett cases, supra, support the proposition that the 'injury' sustained by petitioner would be compensable under the common law, dependent, of course, upon findings of ordinary negligence. We do not believe that the Legislature intended that such an injury as sustained by petitioner would be compensable at common law, but not under the Compensation Act. To hold otherwise would place the employer in the position of being required to defend an action at common law even though such employer had exercised the foresight to qualify under the terms of the Act and procured compensation insurance for the protection of both the employer and employee. Further, the employer, in order to provide for himself adequate protection, would be forced to provide for insurance against liability at common law or assume the risk of becoming individually responsible for the payment of any judgment which might be obtained against him as the result of such common-law action, while at the same time he was paying compensation insurance premiums for the protection of his employees under the Workmen's Compensation Act.'

When the Court used this language it was not talking of any requirement of legal wrong by the employer or its representatives, under the compensation law. It was merely saying that the Legislature intended to make an injury caused by an emotional stimulus compensable under the Compensation Act because the Legislature abrogated the right of an employee to bring a common law action against an employer for an injury received in the course of his employment attributable to a risk of the employment, and, to deny recovery under the Act would leave the employee without remedy, and to hold the Act did not cut off the employee's right of action the employer would not be given the protection intended by the Act. There need be no legal wrong on the part of the employer or his representatives to fix liability under the Workmen's Compensation Act. To recover under the Act it need only be shown that an injury to the physical structure of the body was sustained by the employee as a result of a risk or hazard of the employment while the employee was acting in the course of his employment.

Appellant further contends there was no accidental injury because the incident subjected Mrs. Hart to no greater risk or hazard than that to which the ordinary public is subjected.

We cannot agree to this proposition of law. Actually,...