Dotson v. Royal Indem. Co., 16872

• Decision Date: 15 March 1968
• Docket Number: No. 16872,16872
• Citation: 427 S.W.2d 150
• Parties: Fred S. DOTSON, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee. . Fort Worth
• Court: Texas Court of Appeals

Page 150

427 S.W.2d 150

Fred S. DOTSON, Appellant, v. ROYAL INDEMNITY COMPANY, Appellee.

No. 16872.

Court of Civil Appeals of Texas Fort Worth.

March 15, 1968.

Rehearing Denied April 19, 1968.

Ray Gene Smith, Wichita Falls, for appellant.

Fillmore & Fillmore, and H. Dustin Fillmore, Wichita Falls, for appellee.

OPINION

LANGDON, Justice.

This is a workmen's compensation suit.

The jury, among other findings favorable to the claimant, found in its answers to Special Issues 2, 3, 6 and 11, respectively, that the claimant sustained an injury on November 6, 1964, which was accidental and a producing cause of the total and partial disability which it found.

Motions for judgment on the verdict and for judgment non obstante veredicto were filed by the plaintiff and defendant, respectively. The court finding no evidence of probative value in support thereof disregarded the jury findings above described and rendered judgment non obstante veredicto for the defendant.

The appellant by four points of error contends that there was evidence in support of the jury findings which were disregarded by the court and therefore the court erred in overruling his motion for judgment and in granting the defendant's motion for judgment non obstante veredicto.

We affirm.

The claimant was an employee of the Longhorn Motor Company. He was assigned to the parts department which involved putting up stock and delivering. He used a pick-up truck for deliveries. The items delivered were 'from spark plugs up to motors.' No November 6, 1964, he went to work at 7:30 A.M. and assisted in unloading a shipment of parts from a big six-wheeler truck. Thereafter he loaded his pick-up with items, including tune-up parts and four boxes of brake shoes, for delivery. Enroute he stopped at a red light. He started up, changed shifts, put his hands up and experienced pain in his shoulders and 'I had pains in my chest.' This was about 4:30 P.M. Up to this time he felt fine and had felt fine all day. He kept on driving to the point of delivery. In making the delivery he placed some items on a shelf, 'and then another pain hit me and I dropped down in a chair, that was setting there.' As he sat there his shoulders were hurting and his hands got numb. He had no feeling in his hands at all. He could not even hold a pencil. After completing the delivery the claimant drove back to Longhorn Motor Company and thereafter went home. He did not work the following day, Saturday. He returned to work the following Monday.

The events above related which occurred on November 6, 1964, form the basis of the claim here involved. At this time the claimant was 64 years of age. At the time of trial, October 26, 1966, the claimant was 66 years of age.

Within a week or ten days after November 6, 1964, and twice more in December, similar episodes occurred. The last one in December occurred two or three weeks prior to January 10, 1965. At this time Dr. Mark E. Huff was called to the claimant's home. He examined the claimant about 11:00 o'clock at night. This was the first occasion on which the claimant had summoned a doctor. He complained of chest pain and shortness of breath. The doctor suggested he go in (to the hospital) to check it out. The claimant decided to wait until morning to see how he felt. Next morning he felt better.

On January 10, 1965, close to midnight, Dr. Huff was again called to the claimant's home. On this occasion, according to Dr. Huff, the claimant, 'was having severe chest pain and shortness of breath, which is classical with a coronary and he was admitted promptly to the hospital and put under oxygen, something for pain and electrocardiograms were then run serially, I believe, beginning the next morning.'

The hospital records for the period January 10, 1965, to January 29, 1965, date of release, reflected the following information, part of which was based upon history given to Dr. Huff by the claimant and the latter's family:

'CHIEF COMPLAINT: Severe pain and shortness of breath which came on rather suddently.

'PRESENT ILLNESS: This man has been having some chest pain for the past several weeks. An EKG failed to reveal any evidence of abnormality done a few weeks ago.

'PAST HISTORY: Noncontributory. This man has never had any serious illnesses or difficulty in any way as far as his physical or mental condition. This is the first problem he has had as it so develops.

'SYSTEMIC REVIEW: CARDIAC: Negative except for these episodes of angina-like pain with some shortness of breath and would always come on at night. No edema of feet and ankles.

'DIAGNOSIS: ACUTE CORONARY THROMBOSIS.'

Paragraph VIII of the claimant's original petition filed in the district court on September 15, 1965, described the claimant's injuries as follows: 'The injuries which Plaintiff received and the manner in which he received them may be described as follows: He was lifting something heavy and he felt a pain in his chest and his arm felt numb. He has since found out he had had a heart attack.' This wording is almost identical with the claimant's description of injury contained in his claim filed with the Industrial Accident Board.

When the claimant was asked who told him that he had a heart attack on November 6, 1964, he answered, 'Nobody didn't tell me. I realized--I thought I had one.' He testified that neither Dr. Huff or Dr. Barney, had ever told him that he had a heart attack on November 6, 1964.

It is apparent from the pleadings that the only injury complained of and made the basis of the claim for compensation was a 'heart attack.'

Special Issue No. 2, which was answered 'yes' reads: 'Do you find from a preponderance of the evidence that the Plaintiff sustained an injury on or about the 6th day of November, 1964?' Although the 'injury' inquired about could pertain only to the claimed heart attack there is no testimony in the record from the two medical witnesses, Dr. Mark E. Huff and Dr. Donald C. Barney, of Lawton, Oklahoma, in support of such a finding. The latter examined the claimant on May 27, 1966, approximately eighteen months after the November 6, 1964, episode and again on August 23, 1966. There is no testimony based upon reasonable medical probability that the claimant sustained a heart attack or that his heart sustained any damage or injury on the date in question. We have carefully examined the record in this case and have concluded that claimant as of the date in question proved only that he had some chest pain which put him on notice that he had a coronary insufficiency caused by arteriosclerosis (hardening of the arteries), enlarged heart, or some other disease which affected the flow of blood to his heart and thus was a candidate for a heart attack. No such attack occurred on November 6, 1964, and there was no injury to the heart. The pain was transitory. When the pain left, the disease remained. The pain did not cause the disease. It was merely a symptom.

In Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Austin Civ.App., 1947, ref., n.r.e.), it was said that, 'Under Art. 8307, Sec. 5, Vernon's Ann.Civ.St., the burden of proof to show a compensable injury is upon the claimant. And under Art. 8309, a compensable injury includes not only damages or harm to the physical structure of the body but 'such diseases or infection as naturally result therefrom.' * * * It is true that an injury may be compensable, even though aggravated by an existing disease, or by a disease occurring after the injury. Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356, 357; Texas Indemnity Ins. Co. v. Godsey, Tex.Civ.App., 143 S.W.2d 639, 642. But there must be proven a causal connection between the accident and the ultimate death or disability. And this connection must appear from facts proven from which such connection may be reasonably inferred. The mere possibility that such causal connection exists is not sufficient. The rule stated in 32 C.J.S., Evidence, § 1044, p. 1131, is:

"An inference can be drawn only from the facts in evidence, and cannot be based on surmise, speculation, conjecture, or guess; it must be reasonably drawn from, and supported by, the facts on which it purports to rest, and must be made in accordance with correct and common modes of reasoning. An inference has been required to be based on probabilities, and not on mere possibility or possibilities; but according to other authorities, probabilities, as distinguished from facts proved, will not support an inference.'

'See also Federal Underwriters Exchange v. Edwards, Tex.Civ.App., 146 S.W.2d 461, 463.

'The rule is now settled that a jury is not bound by the opinions of experts elicited through hypothetical questions, where the jury itself can, in the light of their own common experience and the other evidence, reasonably reach a different conclusion. Maryland Cas. Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62, 64; Traders & General Ins. Co. v. Turner, Tex.Civ.App ., 149 S.W.2d 593. But there are certain scientific fields wherein the average juror or layman does not possess the knowledge or information from which to draw his own conclusions; and must be guided by the opinions of experts who have acquired scientific information on the subject. Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945; Lumberman's Mutual Cas. Co. v. Vaughn, Tex.Civ.App., 174 S.W.2d 1001. The cause, diagnosis and treatment of diseases usually come within this category. * * *

'In brief, and without discussing or attempting to differentiate the many cases cited by both appellant and appellee, and taking appellant's evidence in its most favorable light, he proved nothing more than that an accident occurred to his eye in March, 1944, which irritated and inflamed it at the time; that such inflammation was acute and disappeared as the result of treatment; that the growth on his eye was not then malignant; that in February, 1946, same was malignant; and that the accident might possibly have...