Fidelity & Casualty Co. v. Van Arsdale

• Decision Date: 21 June 1937
• Docket Number: No. 4672.,4672.
• Citation: Fidelity & Casualty Co. v. Van Arsdale, 108 S.W.2d 550 (Tex. App. 1937)
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. VAN ARSDALE et al.
• Court: Texas Court of Appeals

Page 550

108 S.W.2d 550

FIDELITY & CASUALTY CO. OF NEW YORK v. VAN ARSDALE et al.

No. 4672.

Court of Civil Appeals of Texas. Amarillo.

June 21, 1937.

Rehearing Denied September 13, 1937.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Suit under the Workmen's Compensation Act by Jeanne Van Arsdale against the Fidelity & Casualty Company of New York, insurer, to set aside the award of the Industrial Accident Board for the death of Harry Van Arsdale, plaintiff's husband. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Bryan & Bryan, of Houston, for appellant.

King, Wood & Morrow and Sam Holliday, all of Houston, for appellee.

STOKES, Justice.

This is an appeal from a judgment of the district court of Brazoria county, awarding appellee compensation for the death of her husband, Harry Van Arsdale, under the Workmen's Compensation Act (Vernon's Ann.Civ.St. art. 8306 et seq.). It was alleged that Harry Van Arsdale died on August 26, 1934, as the result of alleged injuries received the day before, arising within the scope of his employment at Freeport by Houston Lighting & Power Company, which company carried a policy of compensation insurance issued by appellant. The deceased husband of appellee had been employed by the Lighting & Power Company for a number of years as service man. His work consisted principally of answering calls of the customers and in adjusting electrical fixtures, but on occasions he would return to the shop in the rear of the building and do repair work. His employment involved heavy lifting and manual labor, such as is usually performed by such employees. He was 28 years of age and of robust physique and apparently in good health.

The testimony shows that a year or more before his death he had occasional headaches, but they had ceased and he had not suffered from them for at least 6 months. About noon, August 25, 1934, he was in the shop and, for no assigned reason, stepped over to an icebox or refrigerator weighing some 250 or 300 pounds, and moved it some 12 or 18 inches on the terrazzo floor of the shop, and almost immediately appeared at the door with his hands to his face and stated to another employee who was waiting outside that he had a very severe headache and complained of an excruciating pain radiating from his jaw to the region of the temple. He and the employee mentioned got in the company's truck, the deceased doing the driving, and started home for lunch. The employee, Dooley Riggs, lived nearer the shop than Van Arsdale, and it was their purpose to drop Riggs at his home, but, instead, Van Arsdale drove two blocks past Riggs' home, and then expressed confusion as to where he was, and turned the truck around, taking Riggs back to his home, and then proceeding on to his own home. Upon entering the house he complained of a severe pain and immediately went to bed. Dr. Scott, a physician, was called and his condition found to be serious. Dr. Scott called Dr. Reeves, and Van Arsdale was immediately removed to the hospital, where he died at noon the next day. The physicians testified that his death was caused by a cerebral hemorrhage, and that the most probable diagnosis was that he was suffering from a tumor of the brain, which ruptured, causing the hemorrhage.

Appellee alleged in her petition that the injuries arose out of and were caused by his employment. She alleged that, when the deceased caught hold of the icebox to move it, he placed himself in a strained position, and, in attempting to move or lift the box or refrigerator, "he exercised a severe and unusual physical strain, causing his blood-pressure to rise or to be increased; that such strain and such increased blood-pressure placed a strain or pressure in and on his brain, spinal cord, heart * * * nerves and muscles of his body, limbs, neck, head and brain, spinal cord and other organs of his body, and same were thereby caused to be ruptured, broken, stretched, lacerated and caused to hemorrhage and bleed and he was thereby caused to have a cerebral or brain hemorrhage * * * which resulted in his death within a few hours after such injuries were received. * * * That his death was caused by and resulted from such injuries sustained by him as aforesaid and the diseases and infections naturally resulting therefrom."

The case was submitted to a jury upon special issues, some of which were as follows:

"1st. Do you find from a preponderance of the evidence that Harry Van Arsdale, on August 25, 1934, sustained a hemorrhage of the brain? Answer `Yes' or `No' as you may find the facts to be. Answer: Yes."

"2nd. If you have answered Special Issue No. 1 `Yes', and only in that event, then answer the following: Do you find from a preponderance of the evidence that such hemorrhage of the brain, if any, was an accidental injury, as that term is hereinabove defined for you? Answer `Yes' or `No' as you may find the facts to be. Answer: Yes.

"3rd. If you have answered Special Issues Nos. 1 and 2 `Yes', and only in that event, then answer: Do you find from a preponderance of the evidence that such accidental injury, if any, received by Harry Van Arsdale was an injury sustained in the course of his employment by the Houston Lighting & Power Company as the term `in the course of his employment' is hereinabove defined for you? Answer `Yes' or `No' as you may find the facts to be. Answer: Yes "4th. If you have answered Special Issues Nos. 1, 2 and 3 `Yes', and only in that event, then answer: Do you find from a preponderance of the evidence that such hemorrhage of the brain, if any, was a producing cause of the death of Harry Van Arsdale, as the term `producing cause' is hereinafter defined for you? Answer `Yes' or `No' as you may find the facts to be. Answer: Yes."

Answering further special issues, the jury found that Harry Van Arsdale was not suffering from a cerebral hemorrhage prior to the time of the alleged act of moving the icebox in question, and that the cerebral hemorrhage was not caused solely by a pre-existing diseased condition of the deceased, and that he was not suffering from a tumor of the brain on and immediately prior to August 25, 1934.

The court charged the jury that by the term "injury sustained in the course of his employment," as used in the charge, meant "all injuries of every kind and character having to do with and originating in the work of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer."

Upon the verdict of the jury, judgment was rendered in favor of appellee, setting aside the award of the Industrial Accident Board, and granting compensation of $17.70 per week for 360 weeks, to be paid in a lump sum as prayed for and as authorized by the verdict of the jury.

Under its first four propositions, appellant contends that the trial court should have granted its motion for a peremptory instruction, asserting that appellee had not discharged the burden resting upon her to prove by a preponderance of the evidence that the deceased, Harry Van Arsdale, sustained accidental, personal injuries while in the course of his employment for the subscriber, which caused or contributed to his death. Under the testimony of the physicians and other witnesses, the conclusion is inescapable that the mere moving of the icebox by a man of the physical strength of Harry Van Arsdale would not, of itself, have caused a hemorrhage of the brain. It was shown however, that Van Arsdale was undoubtedly suffering from a tumor of the brain, and that, in such cases, the blood vessels of the brain, in the region of such tumors, are diseased and greatly weakened, and that the slightest strain or exercise by a person having such tumor is calculated to increase the blood pressure and cause a rupture of the blood vessels in the region of the tumor. It was shown that this is likely to happen to a person of apparently robust strength, having such a tumor, who is otherwise free from any physical ailments. Dr. Scott testified, in answer to a hypothetical question, setting forth the...