Garcia v. Texas Indemnity Ins. Co.

• Decision Date: 10 March 1948
• Docket Number: No. A-1494.,A-1494.
• Citation: 209 S.W.2d 333
• Parties: GARCIA et al. v. TEXAS INDEMNITY INS. CO.
• Court: Texas Supreme Court

Page 333

209 S.W.2d 333

GARCIA et al. v. TEXAS INDEMNITY INS. CO.

No. A-1494.

Supreme Court of Texas.

March 10, 1948.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit under the Workmen's Compensation Act by Texas Indemnity Insurance Company to set aside an award of the Industrial Accident Board in favor of Dolores Garcia and others for the death of Matthew Garcia, deceased. Judgment in favor of Texas Indemnity Insurance Company was affirmed by Court of Civil Appeals, 205 S.W.2d 803, and Dolores Garcia and others bring error.

Judgments of District Court and of Court of Civil Appeals reversed and cause remanded with directions.

J. A. Copeland, and C. F. Tucker, both of Houston, for petitioners.

Baker, Botts, Andrews & Walne, of Houston, and James W. Mehaffy, of Beaumont, and Bernard J. Mackin, of Houston, for respondent.

BREWSTER, Justice.

This is a workmen's compensation case filed by Dolores Garcia et al., petitioners, against Texas Indemnity Insurance Co., respondent. The jury's answers to the special issues were favorable to petitioners, but the trial court overruled their motion for judgment on the verdict and granted respondent's motion for judgment non obstante veredicto. That judgment was affirmed by the court of civil appeals. 205 S.W.2d 803.

Matthew Garcia, husband and father of petitioners, was a dock hand at a merchandising store, in Houston. His principal work was to load and unload trucks. There were two entrances to the dock where this loading and unloading was done, one for customers' delivery and the other for freight trucks; they were separated by a square brick and concrete post reaching from the ground to the second floor. This post was set in a concrete block, which extended out several inches around the base of the post with rounded edges and corners. However, to protect the post from trucks entering and leaving the dock, steel edgings were set up on this concrete base to cover each corner of the post to a height of 4 feet and 7½ inches above the ground. These edgings were 3½ inches wide and half an inch thick; and where they joined at the top on each corner of the post they produced a sharp corner, which "sticks out a little over an inch" from the post. A witness for respondent testified that he measured these sharp corners "with reference to a man's head if a man was standing there"; that "on a normal size individual" they would come "about his head or the cheek if he fell"; that "if a man fell straight down from a standing position" this sharp corner would be in the way.

The entrances to the docks were inclosed by steel gates, which were operated from above by means of pulleys and ropes. These gates were raised each morning and lowered at the close of business each evening. It required two men to operate them, and one of Garcia's duties was to assist in that work.

On Saturday evening, October 17, 1942, at about 8:55 o'clock and some thirty minutes after his other work had been completed, Garcia was waiting for 9 o'clock when he and a fellow-worker, named Stevens, were to lower these gates. In testifying for respondent, Stevens said that as they waited he and Garcia were standing near the post, talking; that Garcia was leaning against the post on his left shoulder and facing toward the street; that Garcia had said that he wanted to hurry home to his wife and children, when "all of a sudden he jumped up and fell to the pavement and kicked and threw his arms in the air, he jumped up, he kinda jumped sideways and it scared me and it is possible he hit the post"; that, after Garcia fell to the sidewalk he was "kicking and throwing his hands above his head and his eyes looked kinda like they was popped out", and that "he was urinating." In a sworn statement made shortly after the occurrence Stevens stated: "All of a sudden Garcia jumped up in the air and sort of sideways and I believe that when he jumped up and sidewise he hit against the concrete post * * * and then he fell to the ground. I saw that he was unconscious and his eyes were rolling around in his head and his arms were up and flailing as though he was having rigors. Also while on the ground he commenced urinating."

Within a few minutes an ambulance took Garcia to a hospital and at about 9:15 his widow was being told that he was dead. The mortician who prepared the body for burial testified that there was a "jagged" hole in Garcia's left temple which had to be filled with wax and that a cut ran through the upper part of his left eyebrow out into the temple; that he was called to the Garcia home three times before the funeral to rewax the temple because fluid kept escaping through the fracture.

Without objection, exception or request for other issues by either side, the trial court submitted to the jury four special issues, in response to which the jury found: (1) that on October 17, 1942, Garcia received an injury in the course of his employment with his store; (2) that this injury was accidental; (3) that this injury was a producing cause of his death; and (4) that his death was not due to natural causes.

In its motion for judgment non obstante veredicto respondent contended, as it does here, that the uncontradicted evidence shows that Garcia did not die as a result of any accidental injury sustained in the course of his employment and that petitioners had wholly failed to prove that he died of any such injury. The basis of this contention is, first, that he did not die of any injuries at all but of epilepsy; second, if he did die of personal injuries they were sustained in a fall caused by epilepsy and therefore did not arise out of his employment.

Although a doctor who performed an autopy on Garcia's body testified that in his opinion Garcia died of an epileptic seizure and the testimony otherwise sharply conflicted as to whether Garcia received any injury which was calculated to produce death, there was ample evidence that in falling he suffered a fracture of his left temple, which another doctor testified would "in all reasonable probability" have caused his death; so we are obliged to accept the jury's finding that an accidental injury sustained in his fall was a producing cause of his death. Moreover, in spite of an entire absence of any evidence that Garcia had ever suffered from epilepsy, we are going to assume that he fell while in an epileptic fit. So the precise question for decision is: Since Garcia's fall was due to his epilepsy did his injury arise out of his employment? In other words, was there a causal connection between the conditions under which his work was required to be performed and his resulting injury, under art. 8309, Vernon's Ann. Civ.St., as construed in cases like Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238?

As this question has never been decided in Texas, we have looked to the decisions in other jurisdictions for the answer.

Eighteen American jurisdictions allow recovery under circumstances parallel to those in this case, while only three deny it. Illustrative cases for the affirmative are: Varao's Case, 316 Mass. 363, 55 N.E.2d 451; Dow's Case, 231 Mass. 348, 121 N.E. 19; Cusick's Case, 260 Mass. 421, 157 N.E. 596; Rockford Hotel Co. v. Industrial Comm. et al., 300 Ill. 87, 132 N.E. 759, 19 A.L.R. 80; Ervin v. Industrial Comm. et al., 364 Ill. 56, 4 N.E.2d 22; Van Watermeullen v. Industrial Comm. et al., 343 Ill. 73, 174 N.E. 846; Baltimore Towage & Lighterage Co. et al. v. Shenton, 175 Md. 30, 199 A. 806; Barlau v. Minneapolis-Moline Power Imp. Co., 214 Minn. 564, 9 N.W.2d 6; Stenberg v. Raymond Co-op. Creamery Co. et al., 209 Minn. 366, 296 N.W. 498; Reynolds v. Passaic Valley Sewerage Com'rs, 130 N.J.L. 437, 33 A.2d 595; Savage v. St. Aeden's Church et al., 122 Conn. 343, 189 A. 599; Gonier v. Chase Companies, 97 Conn. 46, 115 A. 677, 19 A.L.R. 83; Protectu Awning Shutter Co. et al. v. Cline, 154 Fla. 30, 16 So.2d 342; Rewis v. New York Life Ins. Co. et al., 226 N.C. 325, 38 S.E.2d 97; Christensen v. Dysert et al., 42 N.M. 107, 76 P.2d 1; United States Cas. Co. v. Richardson, Ga.App., 43 S.E.2d 793; Miller et al. v. Beil et al., 75 Ind.App. 13, 129 N.E. 493; Board of Com'rs of Greene Co. v. Shertzer et al., 73 Ind.App. 589, 127 N.E. 843; Industrial Comm. of Ohio v. Nelson, 127 Ohio St. 41, 186 N.E. 735; Eastman Co. et al. v. Industrial Acc. Comm. et al., 186 Cal. 587, 200 P. 17; National Auto. & Cas. Ins. Co. v. Industrial Acc. Comm. et al., 75 Cal.App.2d 677, 171 P.2d 594, 595, which declares that "the harsh rule of the Brooker case (Brooker v. Industrial Acc. Comm., 176 Cal. 275, 168 P. 126, L.R.A.1918F, 878) is no longer in effect in this state"; Mausert v. Albany Builders' Supply Co. et al., 250 N.Y. 21, 164 N.E. 729; Connelly v. Samaritan Hospital et al., 259 N.Y. 137, 181 N.E. 76; Carroll v. What Cheer Stables Co., 38 R.I. 421, 96 A. 208, L.R.A.1916D, 154, Ann.Cas.1918B, 346; New Amsterdam Cas. Co. v. Hoage, Com'r, 61 App.D.C. 306, 62 F.2d 468, certiorari denied 288 U.S. 608, 53 S.Ct. 400, 77 L.Ed. 982; President and Directors of Georgetown College v. Stone et al., 61 App.D.C. 200, 59 F.2d 875; Tavey v. Industrial Comm. of Utah, 106 Utah 489, 150 P.2d 379; and McCarthy v. General Electric Co., 293 Pa. 448, 143 A. 116, 60 A.L.R. 1288.

However, the force of the...