Consolidated Underwriters v. Dunn

• Decision Date: 10 October 1941
• Docket Number: No. 2175.,2175.
• Citation: 155 S.W.2d 431
• Parties: CONSOLIDATED UNDERWRITERS v. DUNN et al.
• Court: Texas Court of Appeals

Page 431

155 S.W.2d 431

CONSOLIDATED UNDERWRITERS v. DUNN et al.

No. 2175.

Court of Civil Appeals of Texas. Eastland.

October 10, 1941

Rehearing Denied October 31, 1941.

Appeal from District Court, Dallas County; Dick Dixon, Judge.

Action under the Workmen's Compensation Act by Mrs. Camie Dunn and others against Consolidated Underwriters, insurance carrier, for the death of A. M. Dunn, deceased employee of Neuhoff Bros. Packers, Inc. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellants.

Chaney, DeShazo & Hyde, of Dallas, for appellee.

GRISSOM, Justice.

This is a workmen's compensation case in which Mrs. Camie Dunn recovered compensation for the death of her husband. A. M. Dunn, deceased, for sometime prior to November 1938 had been construction foreman for Neuhoff Brothers Packers, Inc., who carried a compensation insurance policy on its employees with Consolidated Underwriters. In January, 1938, Dunn made application for an insurance policy; he was examined by a physician and rejected because he had high blood pressure. On the trial of this case it was alleged, in effect, and there was evidence tending to show that Dunn had high blood pressure and that, while he was engaged in the discharge of his duties with Neuhoff Brothers, on November 23, 1938, a box on which he was standing tilted causing Dunn to fall or slide to the floor, landing on his feet. That on the night of the 23d and the following day, which was a holiday, Dunn did not appear to be well, ate very little, had a headache and vomited, and on the 25th of November returned to his work; that at different times on the 26th of November he broke out sections of a hard concrete wall by beating it with sledge hammers; that the sledge hammers weighed from 8 to 20 pounds; that on the morning of the 26th of November at one time Dunn beat on the wall with a sledge hammer for 30 minutes; that he came back in the afternoon and used the sledge hammer several times; that in the afternoon he got sick and was carried to a hospital; that just before he got sick he had been breaking the concrete wall with a sledge hammer. That he leaned over the wall and then slumped down against it. A witness picked him up. He could not stand on his feet. The witnesses picked him up where he was lying by the side of the wall and he was sent to a hospital where he was examined by a physician. His blood pressure then was 220 systolic and 90 diastolic. Mr. Dunn died the following day. All of the medical testimony was to the effect that Mr. Dunn's death was caused by a cerebral hemorrhage, and that when he was brought into the hospital the right side of his body, his arms and legs and the left side of his face were paralyzed. The evidence shows Dunn was about 45 years of age and was suffering from high blood pressure. At the time Mr. Dunn was examined by Dr. Deatheridge for the purpose of passing upon Dunn's application for an insurance policy in January 1938, his blood pressure was 198 systolic and 118 diastolic. Dr. Deatheridge testified, in answer to hypothetical questions, that in his opinion the falling or sliding from the box on November 23d and the muscular exertion and strain induced by use of the sledge hammer and the excitement and nervous strain incident thereto, operated upon his then existing high blood pressure causing the blood pressure to become still higher and producing a cerebral hemorrhage that caused his death.

Defendant presented motions for an instructed verdict and a motion for judgment notwithstanding the verdict. Each of said motions was overruled. The cause was submitted to the jury on special issues which were answered favorably to plaintiffs, and judgment was rendered thereon for plaintiffs.

The following issue, among others, was submitted to the jury and answered as hereinafter shown: "Special Issue No. 4: Do you find from a preponderance of the evidence that A. M. Dunn, deceased, while using said sledge hammer, if you have so found, sustained an accidental injury at the time, and on the occasion in question? Answer: Yes."

The jury had found that Dunn was Neuhoff's employee and that Dunn had used a sledge hammer on November 26th in the course of his employment. The defendant has appealed.

Defendant contends the court should have instructed a verdict for it because plaintiffs did not discharge the burden of proof resting upon them to show that Dunn received an accidental injury. Defendant says there being "no evidence of any unusual strain or lifting or exertion, it is obvious that the burden of proof was not discharged by the claimants of compensation and that an instructed verdict should have been given * * *." Said proposition is overruled.

We think the evidence is sufficient to show that this construction foreman had high blood pressure; that on November 26th he used heavy sledge hammers to break a hard concrete wall; that he had not felt well since two or three days prior thereto when he slipped from a box, and that while he was using a sledge hammer he became suddenly sick, leaned over the wall he was beating on and fell to the floor. That he was picked up and removed to a hospital where he was found to be paralyzed as a result of a hemorrhage of the brain. This evidence is sufficient to sustain a finding of an accidental injury that was a producing cause of Dunn's death. A hemorrhage of the brain of a person, afflicted with high blood pressure, caused by overexertion from the use of a heavy sledge hammer on a hard concrete wall, within the course of his employment, is sufficient to show an accidental injury in the course of his employment. Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581, 584; Consolidated Underwriters v. Christal, Tex. Civ.App., 135 S.W.2d 127, writ refused; Federal Underwriters Exchange v. Polson, Tex.Civ.App., 148 S.W.2d 956, 960; Theago v. Royal Ind. Co., Tex.Civ.App., 70 S. W.2d 473, 475; 45 Tex.Jur. 494.

The foregoing statement and conclusion necessitate the overruling of defendant's second proposition to the effect that we should reverse the judgment on the ground the verdict is clearly wrong.

Issue No. 4 inquiring whether Dunn "while using said sledge hammer * * * sustained an accidental injury * * *" was objected to by the defendant because, among other things, the issue was so "vague, general and indefinite as not to apprise the jury of what issue of fact the court wishes the jury to answer", and for the further reason that the issue did not confine the jury in answering it to plaintiffs' pleadings and to the evidence and because it permitted the jury to take into consideration matters not pleaded or proved by plaintiffs. Plaintiffs had alleged "that the over-exertion of himself in using said sledge hammer caused the deceased to suffer a cerebral hemorrhage which immediately followed the use of the sledge hammer" and "that said overexertion in the use of the sledge hammer was the immediate proximate and/or contributing cause of the cerebral hemorrhage and that the said A. M. Dunn * * * died as a direct and proximate result of the accidental injury sustained by the over-exertion in using said sledge hammer."

Plaintiffs evidently tried the case upon the theory that the deceased had high blood pressure; that he fell or slipped from a box on the 23d and that on November 26th he over-exerted himself in using the sledge hammer to the extent that it raised his blood pressure sufficiently high to rupture a blood vessel and cause a cerebral hemorrhage. It appears to be undisputed that "while using said sledge hammer" Mr. Dunn...