Consolidated Underwriters v. Christal

• Decision Date: 21 December 1939
• Docket Number: No. 10,971.,10,971.
• Citation: 135 S.W.2d 127
• Parties: CONSOLIDATED UNDERWRITERS v. CHRISTAL et al.
• Court: Texas Court of Appeals

135 S.W.2d 127

CONSOLIDATED UNDERWRITERS v. CHRISTAL et al.

No. 10,971.

Court of Civil Appeals of Texas. Galveston.

December 21, 1939.

Rehearing Denied January 11, 1940.

Error from District Court, Harris County; Ewing Boyd, Judge.

Action by Zelia Christal against the Consolidated Underwriters, workmen's compensation insurance carrier, to set aside an award of the Industrial Accident Board, denying plaintiff compensation for the death of her husband, Shellie Christal, employee, as the result of a cerebral hemorrhage, caused by over-exertion in the course of his employment by the Pritchard Rice Milling Company. Judgment for plaintiffs, and defendant brings error.

Affirmed.

Benbow, Saunders & Holliday and Sam Holliday, all of Houston, for plaintiff in error.

Gordon O. McGehee and Morris Pepper, both of Houston (J. A. Copeland, of Houston, of counsel), for defendants in error.

MONTEITH, Chief Justice.

For convenience in this opinion we shall designate the plaintiff in error, appellant, and the defendant in error, appellee.

This is an appeal in an action brought by appellee, Zelia Christal, to set aside an award of the Industrial Accident Board in favor of appellant, Consolidated Underwriters.

The record shows that Shellie Christal, the deceased husband of Zelia Christal, died on the night of November 6, 1937, from the effect of a cerebral hemorrhage. At the time of his death he was employed as a rice trucker for the Pritchard Rice Milling Company, by whom he had been employed for approximately eight years. For a period of a year and a half prior to his death he had suffered from high blood pressure and had been treated for this ailment as late as April, 1937. On the morning of November 5, the day before his death, he went to work as usual in apparently good health, but in the middle of the afternoon complained to his fellow-workers of a severe headache. On the following day he complained continually and was unable to work the latter part of the day. He died about 9 o'clock P. M. on November 6, 1937.

The Industrial Accident Board denied appellee a recovery. From this ruling she appealed to the district court of Harris County.

The case was tried before a jury, who in answer to special issues submitted found that on or about November 6, 1937, in handling sacks of rice for the Pritchard Rice Milling Company, Shellie Christal over-exerted himself; that on said date he was affected by a pre-existing disease of high blood pressure which was aggravated by such over-exertion and from which he sustained a cerebral hemorrhage on November 6, 1937; that such over-exertion was a direct cause of such injury, which was sustained in the course of his employment with the Pritchard Rice Milling Company; that said injury was a direct and contributing cause of his death, which was caused by the combined effect of such injury and the pre-existing disease of high blood pressure, and that his death was not caused solely by disease; that the payment to plaintiff of compensation in weekly installments, instead of a lump sum settlement, would result in manifest hardship and injustice to her.

Appellant assigns error in the refusal of the court to submit to the jury its requested issues Nos. 2 and 3. Requested special issue No. 2 reads: "Do you find from a preponderance of the evidence that such over-exertion, if any, did not act only to make Shellie Christal more predisposed to have the fatal cerebral hemorrhage as the result of his high blood pressure?"

Requested special issue No. 3 reads: "If you have answered Special Issue No. 3 `We do', and only in that event, then answer the following: Do you find from a preponderance of the evidence that such aggravation, if any, was only such as to make Shellie Christal more predisposed to have the fatal cerebral hemorrhage as a result of his high blood pressure?"

The record shows conclusively that prior to his death Shellie Christal was suffering from high blood pressure. Both Drs. Brumby and Thompson testified that this pre-existing condition of high blood pressure was the cause of the fatal cerebral hemorrhage. Dr. Thompson further testified, in answer to a question as to the relation of over-exertion to a cerebral hemorrhage: "It is a pre-disposing cause to a hemorrhage, provided you have a high blood pressure connected with that. In other words, in a high blood pressure case I advise my patients to do light work and not to get around to where they get too excited or do too heavy work, because heavy work or excitement are pre-disposing causes to cerebral hemorrhage, provided you have high blood pressure."

The record shows that the work in which Shellie Christal was engaged required a great deal of effort and strain. The jury found in answer to special issues submitted that the pre-existing disease of high blood pressure was aggravated by over-exertion and that such over-exertion was a direct cause of the cerebral hemorrhage which he sustained on or about November 6, 1937.

It is stated in 45 Tex.Jur., page 492, Section 98: "If a protected employee sustains an accidental injury of the character defined in the law and from which disability or death results, it is compensable even though, at the time, he was suffering from some disease or infirmity that rendered him more susceptible to such an injury, or that aggravated or enhanced its effect. That is to say, if there be a real injury, the background of his peculiarities will not defeat compensation for it, and, `there is no defense to a claim for compensation, based on the fact that the injuries would not have been as great had the employee been in a perfectly healthy condition.' The employer accepts the employee subject to his condition when he enters the employment. Moreover, the fact that the disease was a concurring cause with the injuries in causing disability or death does not preclude the grant of compensation. But in these cases it must appear that there was an injury in the course of employment which directly resulted in disability or death."

It is further stated in 45 Tex.Jur., pages 494-496, Section 99, that: "Included among accidental injuries received in the course of employment, for which compensation has been allowed, are those resulting from strain and those sustained where a strain resulted in the bursting of a blood vessel and consequent apoplexy and death or partial paralysis, where such injuries flowed from something out of the ordinary, and unexpected, and were definitely located as to time and place. The mere fact that the workman in whom the rupture occurred had at the time diseased arteries or high blood pressure is not conclusive as to the injury having been the result of a disease and not accidental. Whatever the physical condition of the individual may have been, if it was such that some physical exertion or strain was required to cause the rupture the injury may be classed as an accidental one."

Since the jury found on sufficient evidence on the ultimate issues that such over-exertion was the direct producing cause of said fatal hemorrhage and that the death of Shellie Christal was not caused solely by disease, appellant cannot avoid liability by showing a pre-existing disease or that an exaggeration thereof was only such as to make Shellie Christal more predisposed to cerebral hemorrhage as a result of his high blood pressure. Armour & Co. v. Tomlin, Tex.Com.App., 60 S.W.2d 204; Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72; United States Fidelity & Guaranty Co. v. Baker, Tex.Civ.App., 65 S.W.2d 344; Traders & General Ins. Co. v. Wright, Tex. Civ.App., 95 S.W.2d 753; Hurd v. Republic Underwriters, Tex.Civ.App., 105 S.W. 2d 428.

We overrule appellant's contention that the court erred in refusing to submit its requested issue No. 4, which reads: "Do you find from a preponderance of the evidence that the directness of the causal connection, if any, between such over-exertion, if any, and the fatal hemorrhage in question was not interrupted by his diseased condition of high blood pressure as a new and intervening cause, as the term new and intervening cause is hereinafter defined for you?"

The evidence is uncontroverted that Shellie Christal had been suffering from the disease of high blood pressure for approximately a year and a half prior to his death. It follows that said diseased condition did not intervene between such over-exertion and the fatal hemorrhage, from the effects...