Gregory v. Texas Emp. Ins. Ass'n

• Decision Date: 19 November 1975
• Docket Number: No. B--5316,B--5316
• Citation: 530 S.W.2d 105
• Parties: Carla Deronda GREGORY et al., Petitioners, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Respondent.
• Court: Texas Supreme Court

Page 105

530 S.W.2d 105

Carla Deronda GREGORY et al., Petitioners, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Respondent.

No. B--5316.

Supreme Court of Texas.

Nov. 19, 1975.

Kronzer, Abraham & Watkins, Tom Edwards and Gregory H. Laughlin, Houston, for petitioners.

Fulbright & Jaworski, Dixie Smith and H. Lee Lewis, Jr., Houston, for respondent.

DOUGHTY, Justice.

This is a workmen's compensation case. Carl Albert Gregory, an employee of Dow Chemical Company, died as a result of injuries he received while working on his employer's premises. The Industrial Accident Board awarded death benefits to Carla Deronda Gregory and Sotonya Lynn Gregory, which award Texas Employers' Insurance Association, Dow Chemical's compensation carrier, appealed to the district court. The trial court entered judgment on a jury verdict awarding claimants full compensation benefits. The Court of Civil Appeals has reversed the judgment of the trial court and entered judgment that claimants take nothing. 521 S.W.2d 898.

Carl Gregory's death resulted from injuries sustained when he fell from the roof of a building where he worked at the Dow Chemical plant in Freeport, Texas. At trial all relevant facts were stipulated except the question of whether Gregory's death was the result of self-inflicted injury and thus excepted from coverage by Article 8309, Section 1 of the Workmen's Compensation Act. Only one issue was submitted to the jury:

Was the death of Carl Albert Gregory the result of intentional self-inflicted injury on his part?

To which issue the jury answered:

It was not the result of intentional self-inflicted injury on his part.

There was no objection to this issue.

The Court of Civil Appeals has held that the evidence conclusively establishes as a matter of law that Gregory died of injury caused by his willful attempt to injure himself. In so holding, the Court of Civil Appeals was in error. We hold that the evidence does not conclusively establish that Gregory's death resulted from intentional self-inflicted injury, and we remand the case to the Court of Civil Appeals for a determination of issues not decided by that court.

The facts and evidence of the case are adequately set out in the opinion of the Court of Civil Appeals and need not be repeated here. That court recognized that the testimony of Gregory's two daughters and of his next-door neighbor was relevant to his intention to take his life. The court held nevertheless that the expert testimony of Wiley B. Noble and the testimony of Joseph H. Andrews, who saw Gregory after he left the roof and before he hit the ground, conclusively establish that Gregory intentionally jumped from the roof.

There is no direct evidence of suicide in this case. We have held, however, that 'the lack of direct evidence does not prevent its being conclusive; an ultimate fact may be conclusively shown by wholly circumstantial evidence.' Prudential Insurance Co. of America v. Krayer, 366 S.W.2d 779, 780 (Tex.1963). As this Court has stated in Cavanaugh v. Davis, 149 Tex. 573, 582, 235 S.W.2d 972, 977 (1951):

While proof of an ultimate fact by other relevant facts and circumstances may sometimes be so conclusive even in the absence of direct evidence as to compel a finding of its existence as a matter of law, (citations omitted) this will be true only where reasonable minds might not differ as to the inference to be drawn.

The evidence shows that Gregory struck the ground upon his back, his feet pointing away from the building from which he fell. His head hit at a point 20 feet from the building. Mr. Andrews testified that from the moment he saw Gregory falling, which was approximately mid-way in his fall, his body remained in approximately the same attitude as when it struck the ground. The building measured 43 feet from the edge of the roof to the ground. The expert witness testified that in order for a person to strike the ground 20 feet from a building 43 feet high, he must have left the roof traveling at a velocity of 9.15 miles per hour. This testimony is uncontradicted. Mr. Noble also testified that it was his opinion that Mr. Gregory's body was in the same horizontal position when it left the roof as when it hit the ground; that '(i)n my opinion it was a free fall from the top to the bottom'; and that there was no other way for Mr. Gregory to have obtained a velocity of 9.15 miles per hour except by running from the top of the building. On cross examination, however, counsel asked:

He could have hit some objects on the way down and still have wound up in the same relative position, true?

To which Mr. Noble replied, 'That is true.'

The evidence shows that there is a stairway on the side of the building from which Gregory fell, with a platform approximately 25 feet above the ground and extending six feet, seven inches horizontally from the side of the building. The platform has a banister extending approximately three and one-half feet above its surface. A light fixture is attached to...