Georgia Casualty Co. v. Little

• Decision Date: 17 February 1926
• Docket Number: (No. 6920.)
• Citation: 281 S.W. 1092
• Parties: GEORGIA CASUALTY CO. v. LITTLE.
• Court: Texas Court of Appeals

281 S.W. 1092

GEORGIA CASUALTY CO. v. LITTLE.

(No. 6920.)

Court of Civil Appeals of Texas. Austin.

February 17, 1926.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Suit by the Georgia Casualty Company against Catherine Little to set aside an award of the Industrial Accident Board for the death of her husband, Manuel Brown. Judgment for defendant, and plaintiff appeals. Affirmed.

H. T. Cooper, of Fort Worth, and Thomas, Frank, Milam & Touchstone, of Dallas, for appellant.

W. H. Jack and Wm. Harry Jack, Jr., both of Corsicana, for appellee.

BAUGH, J.

The Georgia Casualty Company brought this suit in the district court of Navarro county, Tex., to set aside an award of the Industrial Accident Board against it in favor of Catherine Little for the death of her husband, Manuel (or Emanuel) Brown, resulting from injuries sustained by him while in the employ of J. E. Metcalf & Son, contractors, of Corsicana, Tex. The case was tried to the court without a jury. The trial court sustained the award for $3,587.55, one-third of which was awarded to her attorneys. From this judgment the casualty company has appealed.

Appellant has abandoned all but 4 of its 45 assignments of error. The first of those relied upon here is that the evidence is insufficient to show that the injuries received by Manuel Brown while employed by Metcalf & Son were the proximate cause of his death.

Brown was employed by Metcalf & Son as a cement mixer on construction work. He was protected by the policy at the time of his injury. Appellant's physician rated him as totally disabled, and appellant paid him full compensation in the sum of $12.11 per week, he remaining under the treatment of the casualty company's physician. Several weeks after the injury he developed a case of diabetes, and died some eight months after the injury, his total disability continuing up to his death, during all of which time he was continuously paid weekly compensation by appellant. As to the causes of his death, Dr. Burnett, who was appellant's physician and on whose diagnosis appellant relied in paying compensation while Brown lived, and who was employed by appellant to treat him, testified, amongst other things, as follows:

"I think the injuries caused his death, indirectly. We have what we call traumatic diabetes, and that is what I think caused his death — traumatic diabetes. In the first place, I found a small scar behind his right ear, and his right clavicle was broken. He was never up, able to work, after he was injured. The injuries I found him suffering from and treated him for would, in some cases, cause the condition that I have described, and in some cases it would not. I did not know this negro before he was hurt; I never discovered any signs of prior injury or prior disease; I had never seen him before. His unconsciousness was caused by a concussion. He got well of some of those injuries. He probably recovered to some extent from the concussion; he could talk, you might say, in a normal condition, but he was never able to work or do anything after that.

"Diabetes is a condition that is caused by the spleen. What causes it I do not know, and nobody else knows. I mean the pancreas, and not the spleen. You can have a case of traumatic diabetes. Usually an injury to the fourth ventricle of the brain may cause traumatic diabetes. I do not know how long a person can live with diabetes; some live a long life, very much longer than others. It can exist for a number of years without causing death. I do not know how long Emanuel Brown suffered from diabetes, but have an idea; I can't swear to it. With the symptoms he evidenced I do not think I could be mistaken about that.

"I first examined his urine when he complained of it acting too freely; I don't know how many months this was after the injury, but it was some time after; I then determined that he had diabetes for the first time. Up to this time I had not examined him for diabetes. I did not examine him for that because I did not find any evidence of it. I do not think he could have had excessive discharges of urine long before he complained of it; he told me when he was first taken, and that was the first time he had noticed it, and he had not had that excessive flow before that time, was the reason I had not examined his urine. He could have had diabetes without the excessive flow of urine. He could have had diabetes long before he was injured, but I do not think so; I don't know anything about that.

"After this man was injured he was unconscious for four or five weeks and semiconscious for several weeks afterwards, and it must have been about two months, or something like that, before I discovered that he had diabetes. I did not discover anything of that kind at first. I said, on my direct examination, that an injury of that kind might produce that kind of diabetes. As to discovering this traumatic diabetes, he came in one of those mornings and told me he was passing too much water, a slop bucket full, and I told him to come in and let me see some of it, and when I got it analyzed I saw great quantities of sugar. I asked him if he had ever suffered that way before, and he said he had not. A wound on the head, or a lick on the head, would, in my opinion, have caused the unconsciousness of the patient, and concussion can be caused even when the skin is not broken. Traumatic diabetes can be produced only by an injury to the brain — did not say only by concussion; a certain part of the brain must be affected, the fourth ventricle. He received no other injury that might have caused his death except traumatic diabetes. I think he did not, because he had gotten over his concussion."

It may be conceded that this testimony was not as positive and emphatic as it might have been as to what caused the death of Manuel Brown. But, taking it as a whole in connection with other undisputed facts and circumstances, we think it reflects and expresses the professional opinion of appellant's own physician that the injury received by Brown, while under the protection of the compensation policy, was the cause of his death. It was not denied that Brown was strong, robust, and healthy before the injury; that he was totally disabled by the injury which total disability continued and was recognized by and compensated by appellant up to his death; that diabetes developed after his injury, which, in the opinion of Dr. Burnett, was caused by the injury, and which caused his death. Under the facts and circumstances of this case, it was not necessary that Dr. Burnett should have seen Brown at the time of his death or immediately prior thereto in order to testify as to the cause of his death.

We have carefully considered all the authorities cited by appellant on this issue, but deem it unnecessary to discuss them here. All of them are suits for damages in negligence cases, and most, if not all, were sharply contested. We make no dissent from the rules announced therein to the effect that a finding based on mere conjecture cannot stand, but that same must be sustained by competent evidence calculated to show with reasonable certainty a cause for which the defendant is liable. In the instant case the court found against the appellant, who introduced no evidence whatever. The only issue here is, Was there any evidence, in legal contemplation, to sustain that finding?

No such strict construction of the term "proximate cause" as used in the law of negligence, can be applied to compensation cases under our compensation statute (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5246h-5246zzzz). Travelers' Ins. Co. v. Smith (Tex. Civ. App.) 266 S. W. 576. The courts have uniformly made a liberal interpretation and application of the Compensation Act so as to effectuate its purposes. Texas Employers' Ins. Ass'n v. Jimenez (Tex. Civ. App.) 267 S. W. 753; Employers' Liability Ass'n Corp. v. Light (Tex. Civ. App.) 275 S. W. 685. And where the evidence has any probative force in support of the judgment we are not at liberty to disturb it. Ins. Ass'n v. Jimenez, supra; Wade v. Madison (Tex. Civ. App.) 206 S. W. 118. Numerous compensation cases have been before the appellate courts of the state in recent years in which the question of the sufficiency of the evidence to sustain the verdict was raised. We refer without comment to the following cases, wherein the quantum of proof was in most of them no greater than in the instant case, and which were sustained on appeal. Travelers' Ins. Co. v. Smith, supra; Ins. Ass'n v. Jimenez, supra; Millers' Indemnity Underwriters v. Schrieber (Tex. Civ. App.) 240 S. W. 963; Same Co. v. Heller, 253 S. W. 853; Consolidated Underwriters v. Free (Tex. Civ. App.) 253 S. W. 941; Texas Employers' Ins. Ass'n v. Herring (Tex. Civ. App.) 269 S. W. 249; Texas Employers' Ins. Ass'n v. Shipley (Tex. Civ. App.) 260 S. W. 646.

Appellant's second contention is that the evidence was insufficient to show that appellee was the wife of Manuel Brown. We cannot sustain this contention. The deceased negro appears to have been called both Manuel and Emanuel. He was unable to read or write. Appellee was married to Manuel Brown on August 14, 1920, at Rosser, in Kaufman county, Tex. Her own testimony as to what occurred thereafter was, in part, as follows:

"After I married Brown, we lived together at Rosser. Some time after we were married and lived at Rosser Emanuel Brown and I left there and came over this...