Federal Underwriters Exchange v. Polson

• Decision Date: 07 February 1941
• Docket Number: No. 2102.,2102.
• Citation: 148 S.W.2d 956
• Parties: FEDERAL UNDERWRITERS EXCHANGE v. POLSON.
• Court: Texas Court of Appeals

148 S.W.2d 956

FEDERAL UNDERWRITERS EXCHANGE v. POLSON.

No. 2102.

Court of Civil Appeals of Texas. Eastland.

February 7, 1941.

Rehearing Denied March 7, 1941.

Appeal from District Court, Howard County; Cecil C. Collings, Judge.

Suit under the Workmen's Compensation Act by Pairlee Polson against the Federal Underwriters Exchange, the employer's insurance carrier, to recover compensation on account of the death of plaintiff's husband. From a judgment for plaintiff, defendant appeals.

Affirmed.

Lightfoot, Robertson & Gano, of Fort Worth, and Coffee & Coffee, of Big Spring, for appellant.

Martelle McDonald and Brooks & Little, all of Big Spring, for appellee.

GRISSOM, Justice.

Pairlee Polson instituted this suit against Federal Underwriters Exchange, the employer's insurance carrier, to recover compensation under the Workmen's Compensation Act, Rev.St.1925, art. 8306 et seq., on account of the death of her husband on August 9, 1939. She alleged his death was the result of an accidental injury received by him on January 9, 1939, while in the course of his employment with the Lincoln Tank Company. Plaintiff alleged that on January 9, 1939, while in the regular course of his employment with the Lincoln Tank Company, her husband tugged with the lever of a boomer fastening down a chain upon the truck of his employer and in doing so received an accidental injury, in that, such exertion placed a strain upon his heart, injuring it and causing it to give way, whereby he suffered a heart stroke that caused his death on August 9, 1939.

In response to special issues submitted to them the jury found, among other things, that: (1) On January 9, 1939 Joseph Elmore Polson sustained an injury to his heart; (1a) that such injury was sustained in pulling the lever on the boomer; (2) that said injury was an accidental injury; (3) that such injury was received in the course of his employment with the Lincoln Tank Company; (4) that such injury was a producing cause of Polson's death; (5) that Polson's death was not caused solely by an existing diseased condition independent of an accidental injury sustained on January 9, 1939; (6) that Polson had not worked in the same or similar employment for substantially a year immediately preceding January 9, 1939; (7) that there were no employees of the same class as Polson who worked substantially the whole of the year immediately preceding said date in the same or similar employment in Howard County, or in neighboring places; (8) that the average daily wage of Polson that would be fair and just to both parties was $5; (14) that Polson did not recover from the cardiac failure of the heart of January 9, 1939; (15) that Polson would not have died if he had not received the accidental injury on January 9, 1939.

Judgment was rendered on the verdict for plaintiff and defendant has appealed.

As heretofore shown, the jury found, in answer to issues 1, 1a, 2, 3, 4, 5, 14 and 15, that Polson sustained an injury to his heart on January 9, 1939; that such injury was sustained in pulling the lever on a boomer; that the injury was an accidental injury; that such injury was received in the course of his employment with Lincoln Tank Company; that said injury was a producing cause of Polson's death; that Polson's death was not caused solely by an existing diseased condition independent of plaintiff's accidental injury sustained on January 9, 1939; that Polson did not recover from the cardiac failure of the heart of January 9, 1939; that Polson would not have died if he had not received the accidental injury of January 9, 1939.

By its first ten propositions, defendant contends that the evidence was insufficient to sustain the answers of the jury to said issues. It is particularly urged by defendant that the evidence is insufficient to authorize the finding that the deceased employee suffered an accidental injury on January 9, 1939 in the course of his employment with the Lincoln Tank Company, or that the injury of said date, if any, was a contributing cause of the plaintiff's death in August, 1939. Defendant insists the evidence shows that on January 9, 1939 Polson was suffering with high-blood pressure and a diseased heart, and that his death in August 1939 was caused by such disease, or a stroke occurring shortly before his death, and at a time when he was not employed by the Lincoln Tank Company. In support of its contention defendant, although citing many authorities, apparently relies largely upon the decisions in Texas Pacific Fidelity & Surety Co. v. Hall, Tex.Civ.App., 101 S.W.2d 1050, by this court, and Texas Employers' Ins. Ass'n v. Burnett, 129 Tex. 407, 105 S.W.2d 200. With reference to the Hall case it is urged that the evidence in the instant case does not justify an inference that Polson's condition after pulling the lever that unfastened the boomer on the lumber truck on January 9, 1939 was caused by an accidental injury in preference to an inference that such condition was caused by a preexisting disease.

Mr. Couch, a fellow employee of deceased and an eyewitness to the alleged accidental injury of Polson, testified, in substance, that he and Polson went together in a truck on the morning of January 9, 1939, to the railroad yards for the purpose of unloading and hauling lumber for the Lincoln Tank Company; that when they got there another truck had already been spotted for the same purpose; that preparations were made to load this truck which had been driven there by a Lincoln employee by the name of Taylor; that the Taylor truck was equipped with a two-wheel trailer which consisted merely of a frame without a body; that a bolster set over the rear wheels crossways with them; that the bolster was a piece of timber about 6×8 tapering from the center. The purpose of the bolster was to serve as a rest for the lumber. In order to prevent this bolster from wobbling around when the truck was empty it had been chained or "boomed down." The bolster was fastened down by a chain that ran under the tongue and was then fastened and held tight by a boomer. The boomer was a "contraption" with a lever arranged so that when the boomer was pulled shut the chain was drawn up and the tension was put on it, the tension being maintained by the boomer. The lever was about 2 or 2½ feet long. Polson went over to unfasten the boomer. The chain was tight. A pull or jerk on the lever was necessary to open the boomer. Polson took hold of the boomer; after he opened it, he turned it loose. The witness Couch was standing within about 3 feet of Polson waiting to catch the chain after Polson released the boomer and unhooked the chain as Polson would then ordinarily have tossed the chain to him. Couch glanced away momentarily at a passing train; he did not receive the chain as he expected, and four to ten seconds after the boomer opened he noticed Polson leaning over the frame of the trailer in a peculiar manner and apparently saying or trying to say something to him. He stepped around the wheels to Polson, and Polson said "Hold me, I'm falling." Couch placed his arms under Polson's arms and Polson's knees seemed to give way. Couch and Taylor then assisted Polson into a truck. At noon Polson was taken home. Couch further testified that from his past experience he would say the boomer was fairly tight on the occasion in question, that it took quite a bit of pull or jerk to release a boomer of this kind. That the boomer could be released by throwing the weight of his body against it, or by a jerk. That he saw Polson take hold of the lever on the boomer a few seconds before he noticed Polson in the condition mentioned. That he saw Polson start to pull the lever. That when he saw Polson leaning against the truck and apparently trying to call for help the lever on the boomer had been pulled back and the tension on the chain relaxed.

Mrs. Polson testified they were married in 1923; that Polson had worked for the Lincoln Tank Company since they were married except for about two years; that on the morning of January 9, 1939 he looked and acted as usual. That she saw him when he came in at noon; that he couldn't walk good, didn't seem like himself, that he had never been in that condition before; that she saw he needed a doctor and immediately took him to Dr. Hogan. Her effort to state what her husband told her as to the cause of his condition was prevented by an objection to such testimony. (It is here referred to only because defendant stresses the fact that Mr. Polson did not give a history of an accident to Dr. Hogan.) Mrs. Polson further testified that during the year preceding January 9, 1939, Mr. Polson worked about 200 days for the Lincoln Tank Company, averaging about 8 hours work per day; that his job was that of a tank setter and was irregular and intermittent in its nature. In this connection, we call attention to the fact that the evidence discloses that this was approximately the maximum amount of work that could be done by a person in such employment. Mrs. Polson further testified that Polson had never had a stroke or "give way" prior to January 9, 1939; that Polson was advised in 1932 that he had high blood pressure and should go to a lower climate; that he went to the Rio Grande Valley for about two months, that he was able to pick cotton on the return trip from the Valley; that he had erysipelas in 1937 which probably caused him to lose one or two weeks' work; that he had no serious illness until January 9, 1939. That prior thereto he worked when there was a job to be done, and ate and slept normally right up to the morning of January 9, 1939. That when she brought Polson back from Dr. Hogan's office on the day of the accident he stayed in bed six weeks; that after that he didn't do anything but sit around the house. That when warm weather arrived he got out of the house some, worked two or three days for the Lincoln Tank Company, that this work consisted of painting an office and in telling the...