Brodtmann v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED

• Decision Date: 14 June 1937
• Docket Number: No. 8399.,8399.
• Citation: 90 F.2d 1
• Parties: BRODTMANN et al. v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED.
• Court: U.S. Court of Appeals — Fifth Circuit

90 F.2d 1 (1937)

BRODTMANN et al. v. ZURICH GENERAL ACCIDENT & LIABILITY INS. CO., LIMITED.^*

No. 8399.

Circuit Court of Appeals, Fifth Circuit.

May 22, 1937.

Rehearing Denied June 14, 1937.

John L. Bell, of Beaumont, Tex., for appellant.

Major T. Bell and John G. Tucker, both of Beaumont, Tex., for appellee.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The suit was under the Texas Workmen's Compensation Act (Vernon's Ann. Civ.St.Tex. art. 8306 et seq.). The claim was that Brodtmann had died as the result of heart strain from carrying a heavy weight. The defense was (a) that the evidence was insufficient to show that Brodtmann's death was from an industrial accident, rather than from natural causes, and (b) if there was an industrial accident, it occurred from work being done on a boat, and there was no sufficient evidence to show that it occurred on land and without the admiralty jurisdiction.

At the conclusion of the evidence, which showed that Brodtmann had for some time had a heart condition which might result seriously, especially if aggravated by any physical strain; that in August, 1935, doctors had advised him that he ought to quit work and rest; that in October, 1935, he had had a heart attack similar to but not as serious as the one from which he died in December of that year; that just before the fatal attack he had gotten a worm gear, weighing around 70 pounds, from the boat, and had carried it on his shoulder for 125 to 150 yards from the boat to the shop; and that just after he had put it down in the shop he had succumbed to the attack from which he died, the District Judge instructed a verdict for the defendant.¹ This appeal tests whether that action was demanded.

We do not think it was. We agree with appellants that the evidence, circumstantial in part though it was, made out a case for a jury verdict upon whether within the meaning and jurisdiction of the Texas Workmen's Compensation Act, appellants' decedent suffered an injury, that is, damage or harm to the physical structure of his body. The view taken by the District Judge and urged upon us by appellee here, that claimants' case failed for want of proof, seems to us to have too much of fact finding in it. As we see the case, while it is quite clear that the evidence does not compel a verdict for claimants, it is equally clear that it permits one. The facts and circumstances on which appellants depend for a verdict are consistent with each other, and taken as a whole, they clearly support the inference that Brodtmann's weakened heart made him peculiarly susceptible to damage or harm to the physical structure of that organ from any sudden or violent exertion or strain.

They make out a case, taken most favorably for claimants, of an employee who, because of an existing disability, was liable to heart injury from strains and exertions which would not have been injurious to an ordinary employee. They make out a case for the jury within the general proposition, well recognized under the Texas Workmen's Compensation Law, of an accidental injury which is none the less compensable because the pre-existence of a diseased condition has made serious or fatal what would not otherwise have been so. Texas Employers' Insurance Association v. McGrady (Tex.Civ.App.) 296 S.W. 920; Theago v. Royal Indemnity Insurance Co. (Tex.Civ. App.) 70 S.W.(2d) 473; Travelers Insurance Co. v. Johnson (Tex.Civ.App.) 84 S. W.(2d) 354; Security Mutual Casualty Co. v. Bolton (Tex.Civ.App.) 84 S.W.(2d) 552; Fidelity Union Casualty Co. v. Martin (Tex.Civ.App.) 45 S.W.(2d) 682; Texas Employers Ins. Ass'n v. Shifflette (...