Hedtke v. Transport Ins. Co., 14283

Decision Date07 October 1964
Docket NumberNo. 14283,14283
Citation383 S.W.2d 474
PartiesIrene L. Hendrickson HEDTKE et al., Appellants, v. TRANSPORT INSURANCE COMPANY, Appellee.
CourtTexas Court of Appeals

Perkins, Floyd, Davis & Oden, Alice, for appellants.

Lloyd, Lloyd, Dean & Ellzey, Alice, for appellee.

MURRAY, Chief Justice.

This is a Workmen's Compensation case. Heldt Bros. Trucks was the employer, Frank V. Hendrickson, deceased, the fatally injured employee, and Transport Insurance Company, the carrier of the Workmen's Compensation insurance.

An appeal from the award of the State Industrial Accident Board was taken by Irene L. Hendrickson Hedtke, the wife of Frank Hendrickson at the time of his drowning, in her individual capacity and as guardian of her minor daughter, to the District Court of Zapata County, alleging, among other things, that on October 14, 1961, Frank V. Hendrickson was accidentally drowned in Zapata County. Art. 8307, Sec. 5, Vernon's Ann.Civ.Stats. Transport Insurance Company challenged the jurisdiction of the District Court of Zapata County on the ground that Hendrickson was not drowned by Zapata County.

The trial court, after hearing evidence, sustained the plea to the venue and jurisdiction and dismissed the cause, from which action Mrs. Hedtke has prosecuted this appeal.

Appellants offered in evidence the death certificate of Frank V. Hendrickson which showed on its face that he accidentally drowned when a fishing boat capsized on Falcon Lake in Precinct 1, Zapata County, Texas. It was signed by Rene L. Garza, local Registrar, and shows on its face that it was based upon information furnished to him by Mrs. Hendrickson (now Mrs. Hedtke). It was not certified by the State Registrar, and was excluded by the trial court. The court's action in excluding this death certificate is assigned as error by appellants, Mrs. Hedtke and her minor daughter.

It was pointed out in oral argument that appellee had agreed not to object to the introduction of the death certificate on the ground that it was not certified by the State Registrar of Vital Statistics. Under such circumstances, if the trial court had admitted the certificate in evidence, appellee would not have been in a position to assign such action as error, but this agreement does not change the fact that the death certificate was not certified by the State Registrar.

Art. 4477, Rule 54a, Vernon's Ann.Civ.Stats., which relates to records of the State Department of Health, reads in part as follows: 'And any such copy of a record, when properly certified by the State Registrar, shall be prima facie evidence in all courts and places of the facts therein stated.' The certificate herein was not certified by the State Registrar and therefore was not prima facie evidence of the facts stated therein. This certificate shows on its face that it was made by the local Registrar upon information furnished by Mrs. Hedtke, and unless made admissible by the provisions of Rule 54a, supra, it was clearly not prima facie proof of the facts stated therein. As we shall hereafter point out, it is highly improbable that Mrs. Hedtke had any personal knowledge as to where her former husband was accidentally drowned. The trial court did not err in excluding this uncertified certificate.

The only witness to testify was C. M. Hein, the Sheriff of Zapata County, who was offered by appellants. He testified that Hendrickson, Tom Neal and Speedy Lewis were out on Lake Zapata (Falcon) in a fishing boat, when it capsized, drowning Hendrickson. Neal and Lewis survived. Hein talked with Neal and Lewis but neither of them knew whether they were on the Texas side of the lake or the Mexico side at the time of the accident. No one was in the boat at the time except those three men. Hendrickson's body was found three days after the drowning on the Mexico side of the lake, some four to six hundred yards from the boundary line. Thus it appears that no one knows and no one will ever know whether Hendrickson was drowned in Texas or in Mexico. It is apparent that Mrs. Hedtke was not present when her then husband drowned, and does not know of her own knowledge on which side of the lake he was drowned. The Justice of the Peace did not see Hendrickson's body until three days after the drowning, and therefore did not know of his own knowledge where it occurred.

The evidence shows that the information in the death certificate was based upon hearsay, and the trial court did not err in disregarding it. Armstrong v. Employers Casualty Co., Tex.Civ.App., 357 S.W.2d 168; Texas Reserve Life Ins. Co. v. Dees, Tex.Civ.App., 368 S.W.2d 886.

Appellants contend that in any event the court should have transferred this cause to a proper court in the proper county, under the provisions of Art. 8307a, Vernon's Ann.Civ.Stats. We do not agree. This suit was brought in Zapata County under the provisions of Sec. 5, Art. 8307, Vernon's Ann.Civ.Stats., and having failed to establish...

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2 cases
  • Texas Workers' Comp. v. Wausau Underwriters
    • United States
    • Texas Court of Appeals
    • September 25, 2003
    ...703. 7. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 8. See Hedtke v. Transport. Ins. Co., 383 S.W.2d 474, 475 (Tex.Civ.App.San Antonio 1964, writ. ref'd n.r.e.) (holding that trial court properly excluded death certificate certified by......
  • Texas Employers' Ins. Ass'n v. Ellis
    • United States
    • Texas Court of Appeals
    • October 13, 1976
    ...application to the other. Each requires different pleadings and different proof of facts. Hedtke v. Transport Insurance Company, 383 S.W.2d 474 (Tex.Civ.App.--San Antonio 1964, writ ref'd n.r.e.). We simply note in disagreeing with the Beaumont Court that Article 8307a and the many cases co......

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