Highway Ins. Underwriters v. Le Beau

• Decision Date: 13 October 1944
• Docket Number: No. 14644.,14644.
• Citation: 184 S.W.2d 671
• Parties: HIGHWAY INS. UNDERWRITERS v. LE BEAU et al.
• Court: Texas Court of Appeals

Page 671

184 S.W.2d 671

HIGHWAY INS. UNDERWRITERS v. LE BEAU et al.

No. 14644.

Court of Civil Appeals of Texas. Fort Worth.

October 13, 1944.

Rehearing Granted November 17, 1944.

Second Motion for Rehearing Denied January 5, 1945.

Appeal from District Court, Montague County; Earl P. Hall, Judge.

Suit under the Workmen's Compensation Act by Mrs. Inez LeBeau for herself and as next friend for her minor child to set aside an award of the Industrial Accident Board in favor of Highway Insurance Underwriters. From a judgment for plaintiffs Highway Insurance Underwriters appeal.

Reversed and rendered.

T. H. Yarbrough, of Bowie, and Strasburger, Price, Holland, Kelton & Miller, of Dallas, for appellant.

Donald & Donald, of Bowie, for appellees.

SPEER, Justice.

This a workmen's compensation case. Mrs. Inez LeBeau, for herself and as next friend for her minor child, alleged to be the sole surviving beneficiaries of R. C. LeBeau, deceased, sued Highway Insurance Underwriters for dependents' benefits and compensation for the death of the husband and father, R. C. LeBeau. J. D. Franklin was the employer.

Insofar as necessary to state, plaintiff sought recovery because the employer had previously purchased from the carrier a policy of workmen's compensation insurance covering the compensable injuries to R. C. LeBeau; that for nearly two years prior to November 24, 1942, when he died, deceased had been in the regular employ of J. D. Franklin, doing general welding labor; that on the last mentioned date, while in course of such employment, attempting to weld the broken axle of a heavy machine, he was required to lift and handle heavy bars of iron, which necessitated much physical strength and exertion; that deceased had recently been afflicted with influenza, missed work a day or so, but while yet weakened from said attack, had practically recovered therefrom when called upon to perform the labors described; that because of said previous weakened condition and the difficult labors performed and the accidental strains and overexertion of his physical strength, he received an injury resulting in an acute dilation of the heart, from which he died almost instantly. Plaintiff alleged the issuance by the carrier of the policy and its possession by the employer, and that it was in full force and effect at all times applicable to the controversy here. Appropriate allegations were made for jurisdictional purposes and for lump-sum settlement in lieu of weekly payments.

Defendant carrier answered with general denial, and special pleas that no accidental injury occurred, that deceased's death was from natural causes and not from accidental injuries. There were other special pleas not pertinent here.

Trial was to a jury. At the conclusion of taking testimony, the insurance company moved for an instructed verdict upon several grounds, each of which has been brought forward as a point of error. The motion was overruled.

The special issues submitted by the court were preceded by approved definitions of "injury," "accident," and "preponderance of the evidence." In response to certain issues submitted, the jury found (1) deceased was an employee of J. D. Franklin at the time of his death; (2) deceased sustained an injury to the physical structure of his body while working in Montague County, Texas, on November 24, 1942; (3) he was in due course of employment when injured; (4) this is a special case in which manifest hardship and injustice will result to plaintiff if the compensation is not paid to her in lump-sum; (7) deceased had worked in the same employment during substantially the whole year next preceding the date of the injury; and (8) deceased's average weekly wage was $40 or more.

Special issues 5, 6, 9 and 10 were not answered. These issues inquired: (5) if they found deceased's death was not the result of natural causes; (6) was deceased's death the result of an accident; (9) did deceased overexert himself on November 24, 1942, while trying to remove the shaft from the machine he was called upon to repair; and if No. 9 was answered "no" they need not further answer, but if answered "yes" then answer (10) did such overexertion cause the death of deceased. We have not attempted to quote the questions; each was predicated upon the preponderance of the evidence and properly fixed the burden of proof.

After the verdict was returned and received, carrier moved for judgment notwithstanding the verdict; this was overruled and motion of plaintiff for judgment on the verdict was sustained. Judgment was entered in lump-sum for plaintiff and her child with an apportionment thereof to each. After motion for new trial was overruled, exceptions taken, and notice given, this appeal was perfected.

The insurance carrier (appellant) presents in its points of error 1, 2, 3, 5, and 6 as many reason why it contends its motion for an instructed verdict, or, in the alternative, its motion for judgment notwithstanding the verdict, should have been sustained.

These points are based upon the theory that there was no competent testimony (1) that deceased's death was caused by any injuries sustained by him; and (2) that J. D. Franklin and Mrs. LeBeau, nonexpert witnesses, were permitted to testify, over its objections, that deceased had had the flu or influenza a week or two before his death.

Mrs. LeBeau testified in her own behalf relative to the condition of her husband's general health. She said in effect that she had known him about eight years and that they were married about seven years before his death; that he was 32 years old, weighed about 174 pounds, was of muscular build; he never made any complaint in her presence of being sick—"Nothing only he had the influenza" about two weeks before he died and was off work a day or two; she didn't know exactly how long. Appellant objected to her answer that he had the "flu" because she was not qualified to testify to that character of question —"that being a germ and that being a medical question, and we ask that it be stricken." The objection and motion were overruled. Counsel for appellant then cross-examined the witness and she repeated what she had previously said, and added that they did not have a doctor, and that he had recovered from it at the time of his death. Counsel then asked her: "When you spoke of the flu, it is just like anybody says, when they don't feel good this day and time, they call it the `flu'?" She answered: "No, not necessarily; you usually know when you have the flu. I do." J. D. Franklin (the employer) also testified, over appellant's objection, that deceased had had the flu some time before his death, but he would not attempt to fix the date.

Appellant contends that the erroneous introduction of this testimony materially affects the basis of appellee's right of recovery. We shall later have something to say about its materiality.

The general rule controlling the admissibility of such testimony is laid down in 19 Tex.Jur. 354 et seq., § 231, in this language: "A witness need not be an expert in medical matters in order to be competent to express an opinion as to the physical condition of himself or another. And it is clear that in describing such a condition the witness is not required to state all the evidentiary facts on which his opinion is based; his statement may partake largely of the nature of a summary of, or conclusion from, such facts. These rules are applicable alike whether the testimony relates to general health, or to particular disease or injury. * * *"

The rule announced in 20 American Jurisprudence, 721, § 860, covers Texas and other jurisdictions. It appears that there is an apparent conflict in the views taken in different states. There, it seems, some states hold to the rule that the nonexpert witness may detail the apparent physical condition of another person as to all matters open to ordinary observation to persons of common experience but does not extend to latent conditions or the existence of a particular disease which is determinable only by the peculiar experience and training of a physician. The text says: "However, according to most courts, in the case of common diseases and disabilities, familiarity with which is a part of general knowledge, one who has observed the patient during his illness and has seen similar cases may testify as to what disease or ailment he had. This rule is upon the theory that a lay person of ordinary intelligence can determine the existence of a disease which is of frequent occurrence among people generally. * * *"

In Pullman Palace Car Co. v. Smith, 79 Tex. 468, 14 S.W. 993, 994, 13 L.R.A. 215, 23 Am.St.Rep. 356, after plaintiff's wife had detailed the manner in which she was exposed to cold and rain and that she became ill from it, she was permitted to say: "I know of nothing else that could have caused my illness except the exposure to which I was subjected on the morning when I got off the train."

It has been held by our courts that a nonexpert may testify to such matters as: A plaintiff may testify that his injuries are permanent, Turner v. Stoker, Tex.Civ. App., 289 S.W. 190, writ refused. That plaintiff's deceased husband was paralyzed and could not speak, Abee v. Bargas, Tex. Civ.App., 65 S.W. 489. Plaintiff was all crippled up and couldn't walk very far, San Antonio Traction Co. v. Flory, 45 Tex. Civ.App. 233, 100 S.W. 200, writ refused. A husband plaintiff may testify that his wife had never had any cough, lung trouble or female trouble prior to the exposure complained of, St. Louis Southwestern R. Co. v. Lowe, Tex.Civ.App., 97 S.W. 1087, writ refused. Witness may testify from observation that another was still suffering from an injury and that she had a cramping and numbness in her limbs, Fort Worth & D. C. R. Co. v. Morrison, Tex. Civ.App., 129 S.W. 1159. Wife may testify that her injured husband had difficulty in passing his urine, Houston & T. C. R. Co. v. Johnson, Tex.Civ.App., 118...