Great American Indemnity Co. v. Dabney

• Court: Texas Court of Appeals
• Writing for the Court: Jackson
• Citation: Great American Indemnity Co. v. Dabney, 128 S.W.2d 496 (Tex. App. 1939)
• Decision Date: 17 April 1939
• Docket Number: No. 5016.,5016.
• Parties: GREAT AMERICAN INDEMNITY CO. v. DABNEY.

Page 496

128 S.W.2d 496

GREAT AMERICAN INDEMNITY CO. v. DABNEY.

No. 5016.

Court of Civil Appeals of Texas. Amarillo.

April 17, 1939.

Rehearing Denied May 22, 1939.

Appeal from District Court, Dallas County; Paine L. Bush, Judge.

Suit by Phoebe Dabney against the Great American Indemnity Company to recover compensation for the death of her husband, Richard Dabney. Judgment for plaintiff, and the defendant appeals.

Judgment reversed and cause remanded.

R. T. Bailey, of Dallas, for appellant.

James K. Byers, of Dallas, for appellee.

JACKSON, Justice.

This appeal is prosecuted by the Great American Indemnity Company from a judgment obtained against it in the District Court of Dallas County by Phoebe Dabney in a suit to recover compensation for the death of her husband, Richard Dabney, who, she alleges, lost his life while in the employ of the American Ice Company.

No complaint is made of the sufficiency of the pleadings of either party and no question as to the jurisdictional facts is presented, hence, an extended statement of the pleadings is not required.

The appellee alleged that her husband over-exerted himself while performing his duties, causing the rupture of a blood vessel in his brain, resulting in death. She admitted that her claim was not filed with the Industrial Accident Board within six months after the death of her husband but asserted that good cause existed for such failure, pleading that his employer knew of the injuries and death but failed to file notice thereof with the Industrial Accident Board; that a few days after Dabney's death she was advised by Howard Campbell, an employee of the American Ice Company, that no insurance was carried by it that would protect her for the death of her husband; that soon after he was buried she employed Frank C. O'Brien, an attorney of Dallas, to investigate the matter, ascertain if she could collect anything because of her husband's employment and death, and was thereafter advised by him that she was entitled to recover compensation insurance for his death; that he would represent her, file her claim, but failed to do so; that she relied on this advice and did not know until January 13, 1936, that the American Ice Company carried compensation insurance to protect its employees; that she believed that the employer advised her attorney that it did not carry compensation insurance for which reason he failed to file her claim, but if mistaken in that then her attorney failed to file the claim, either by accident or mistake or was acting in bad faith for the purpose of defrauding her, having first advised her she was entitled to recover and her claim had been filed, and later advising her she could not recover.

The appellant answered by general demurrer, general denial, alleged that the deceased did not sustain any injury in the course of his employment that either caused or contributed to cause his death, but that he died as a result of natural causes.

In response to special issues submitted by the court, the jury found in effect that the deceased sustained an injury in the course of his employment on September 8, 1933, with the American Ice Company; that the injuries resulted in brain hemorrhage from which he died; that death was the result of the combined effect of the injury received on September 8, 1933, and a pre-existing disease; that the agent of the American Ice Company stated to her subsequent to the death of her husband that the Company carried no insurance that would protect her for his death; that at all times prior to January 14, 1936, she believed and relied upon such statement; that in so believing she used such diligence as a person of ordinary prudence would have exercised under similar circumstances; that Mr. O'Brien, the lawyer who first represented her, advised her in substance that she could recover; that claim had been filed; and later informed her she could not recover; that she used due diligence in relying on these statements until January 14, 1936; that the employer of deceased should have made a report to the Industrial Accident Board but did not; that she did not actually discover or know until January 14, 1936, that the American Ice Company carried compensation insurance for the protection of its employees; that she used reasonable diligence in filing her claim subsequent to the time she employed the attorney now representing her; that the death of deceased was not solely caused by heart trouble, kidney trouble or hardening of the arteries.

There were numerous other special issues submitted all of which were answered in favor of the appellee but, in our opinion, a disposition of this appeal does not require us to give the substance thereof.

On the finding of the jury judgment was entered that appellee recover from appellant the sum of $2,942.01, from which judgment this appeal is prosecuted.

The appellant presents as error the action of the court in permitting appellee to offer in evidence over its objections the purported record of the Parkland Hospital as such records were but ex parte statements of persons whom it was claimed made them. It is conceded that Richard Dabney, the deceased, was admitted to the Parkland Hospital in Dallas at 3:30 A. M. on September 8, 1933. Miss Nora Smith, a witness called by appellee, stated that she became record librarian for the hospital in October 1936, and her duties were to see that the records are complete, properly filed, cross-filed and placed away for permanent keeping; that she had supervision over such records under the direction of the superintendent of the institution; that the records were kept according to the general outlines of standardization of the American Medical Association and the American College of Surgeons; that she had with her the hospital records of the admittance thereto of deceased. After these preliminary statements she was permitted to testify that the record was made by the nurses, doctors and attendants of the hospital in the line of their duties, to which statement appellant objected because hearsay. She then exhibited Exhibit No. 10, which purported to constitute the entire record of the hospital pertaining to Richard Dabney.

The appellant objected to the introduction of Exhibit No. 10, which was composed of the admission record, admittance notes, personal history, physical examination, progress record, treatment, graphic chart, bedside notes, permission for postmortem operation and autopsy report because hearsay as to appellant, not properly identified, not made by or under the supervision of this witness, and specially objected to the admittance notes, which recite that the deceased "fell out suddenly," because it does not appear from whom such information was obtained, nor that the party signing it had personal knowledge of the facts enumerated therein, nor that it was made by the patient or anyone who knew of it, nor that such information was correct; that it was a self-serving declaration. Particular objection was urged to the autopsy report because it was an unsigned carbon copy, the original was not accounted for, and not the best evidence.

Evidently Exhibit No. 10 did not consist of a book in which original entries had been made or into which the original entries had been transferred, but a file of several sheets of paper upon each of which had been written different matters for the information of the hospital and afterwards arranged in an orderly and convenient manner for reference. The admission of some of the information contained on these sheets was harmless because shown by other testimony, however, there is no testimony in the record to the effect that the deceased "fell out suddenly"; the evidence is that he announced to one of his co-workers, whom he asked to take over his machine, that he was sick and went and lay down. The record of the physical examination discloses the working diagnosis after physical examination—sub-dural hemorrhage. The progress record discloses that the patient was having convulsions; that he expired, and that the "autopsy showed sub-dural hemorrhage. Final diagnosis, subdural hemorrhage." The witness then read the graphic record, the bedside notes, the permit from the appellee for the postmortem operation on her husband, and subsequently read the report of the autopsy findings which contained in condensed form much of the matter in the record previously introduced, but in addition showed that the autopsy was had September 8, 1933 at 9:00 A. M.; that the deceased "fell out suddenly"; and many other matters unnecessary to give, but contains the following: "Brain: The cranial cavity is filled with blood on opening the dura. The blood is partially clotted and is most extensive over the base of the brain, covering over the meninges and concealing the larger arteries at the base of the brain. There is extensive blood clot over the cerebral lobes also covering and almost concealing from view the pia mater. On section there is no hemorrhage into the substance of the brain and the ventricles are normal in size. The spinal cord is covered with hemorrhage also. Heart: is about twice the normal size weighing 610 grams. The myocardium at the apex of the left ventricle is 2 cm. in thickness." Then follows the condition of the aorta, lungs, liver, gall bladder, kidneys, spleen, pancreas, and other organs, in detail, and proceeds: "Anatomical diagnosis: Massive cerebral hemorrhage, sub-dural. Hypertrophy of the heart. Atheroma of the aorta. Edema of the lungs. Hypostatic congestion of kidneys and liver. Retention cysts of kidneys. Adenoma of kidney. Chronic Splenitis. Cause of Death: Massive subdural hemorrhage." This witness testified that the autopsy report was a carbon copy, was unsigned and did not bear the seal of the hospital. Dr. Ward testified in substance that if the deceased had a rupture of the blood vessel of the brain "as shown by the autopsy report" that the work he was doing for the Ice Company could...