Houston Fire & Casualty Ins. Co. v. Biber

• Citation: 146 S.W.2d 442
• Decision Date: 11 December 1940
• Docket Number: No. 10821.,10821.
• Parties: HOUSTON FIRE & CASUALTY INS. CO. v. BIBER et al.
• Court: Texas Court of Appeals

146 S.W.2d 442

HOUSTON FIRE & CASUALTY INS. CO. v. BIBER et al.

No. 10821.

Court of Civil Appeals of Texas. San Antonio.

December 11, 1940.

Rehearing Denied January 15, 1941.

Appeal from District Court, Nueces County; Cullen W. Briggs, Judge.

Suit under the Workmen's Compensation Act between the Houston Fire & Casualty Insurance Company and Mrs. Mary Alma Biber and others, claimants, to set aside an award of the Industrial Accident Board. From a judgment awarding compensation, the insurer appeals.

Reversed and rendered.

Boone, Henderson, Boone & Davis, of Corpus Christi, and Baker, Botts, Andrews & Wharton, of Houston, for appellant.

M. A. Childers, of San Antonio, and Chas. H. Clark and Tillman Smith, both of Corpus Christi, for appellees.

NORVELL, Justice.

This is a workmen's compensation case. The Houston Fire and Casualty Insurance Company has appealed from a judgment based upon a jury verdict awarding Mary Alma Biber, Leonard Biber and Betty Biber, the widow and minor children of Alois Biber, a recovery of $20 per week for 360 weeks because of the death of Alois Biber. Article 8306, Sec. 8, Vernon's Tex. Civ.Stats.

The appellant contends that the evidence is insufficient to support the jury's findings to the effect that Biber died as a result of an injury received in the course of his employment.

The evidence in the case is for the most part undisputed, and largely circumstantial. Biber died as a result of a cerebral hemorrhage, and the medical witnesses who testified upon the trial seemed to agree as to the correctness of the following text statement with reference to the cause of death: "The immediate rises in blood pressure which lead to the rupture of cerebral vessels may be due to many factors, physical and mental, among which are: muscular exertions, as lifting, running, coughing, sneezing, straining at stool, coitus, parturition and all other efforts involving such strain; and emotional excitement, as fear, worry and anger. Emotional states cause greater rises of this pressure than do physical efforts, and the elevation is maintained for a longer period of time. It is a popular belief and probably well justified, that a great many strokes of apoplexy occur during fits of anger."

It is appellees' theory that the cerebral hemorrhage was caused by the muscular exertions of Biber in performing his duties as an employee of the South Texas Cotton Oil Company. All of the questions propounded by appellees to their medical experts are based upon this hypothesis.

It is well settled that the coverage of workmen's compensation insurance is not the same as that afforded by life or health insurance, and that appellees had the burden of proving that Biber, during the course of his employment, suffered some injury as that term is defined by the Workmen's Compensation Act, Article 8309, Sec. 1, and that such injury was a producing cause of death. Aetna Life Insurance Company v. Graham, Tex.Com.App., 284 S. W. 931; Texas Indemnity Ins. Company v. Staggs, 134 Tex. 318, 134 S.W.2d 1026.

Because of the nature of the case, a somewhat extended statement of the evidence is necessary in order to properly discuss appellant's assignment which challenges the sufficiency of the evidence to support the verdict.

At the time of his death, Biber was fifty-two years of age and employed as a foreman by the South Texas Cotton Oil Company. Biber had charge of a "seed house" located at Corpus Christi, Texas, which was 378 feet long, 98 feet wide, having walls 10 feet high on the sides connecting with a roof which ran up to a peak. The highest part of the roof was 51 feet above a concrete floor. The building was of frame construction with corrugated iron roof and walls, and was used for the storage of the reserve supply of cotton seed purchased by the company during the cotton crop season.

Cotton seed hauled to the storage building was unloaded into a conveyor line that ran below the floor. From this conveyor line, the seed was elevated to another line at the top of the building and distributed throughout the seed house, by the use of openings in the top conveyor line.

On September 8, 1939, the date of the alleged injury, the seed house was about nine-tenths full, the seed coming up against the wall except for a clear space of 25 to 30 feet on the west end of the building and 10 to 12 feet on the east end where there were doors. There was a tunnel constructed through the center of the building so as to allow passage from one end of the house to the other. There was also a catwalk located in the middle of the building, about eleven feet below the peak of the roof, that is a long walkway connecting with a stairway at either end of the building. From this catwalk it was possible for one to step off onto the cotton seed stored in the building.

There was a shed at the west end of the seed house under which scales were located, together with a space for a desk and counter. This shed was apparently open, consisting principally of a roof extending out over the west side of the seed house. The office of the company was situated about 75 feet from the west end of the seed storage building.

It was Biber's duty to supervise the unloading of trucks filled with cotton seed and look after the distribution of the same within the building, checking its condition from time to time for excess temperature. The number of men under his supervision varied between three and eight from time to time in accordance with conditions.

The temperature of the seed was taken by means of a special thermometer at the end of jointed metal pipes or rods. These thermometers were pushed into the cotton seed to about a depth of 20 feet, either from holes in the walls of the building or by walking out over the seed from the catwalk and inserting the thermometer in various parts of the pile of cotton seed. From 15 to 30 of these temperature tests would be made each day, so that parts of the seed pile could be opened up when danger from overheating became apparent.

It appears that on the afternoon of September 8, 1938, the sun was shining brightly and the temperature ranged between 88 and 89 degrees in the shade at 1:30 p. m. The temperature in the seed house because of its corrugated iron construction was undoubtedly much higher than that, although the seed house had a dormer arrangement that ran the entire length of the building, with windows in it, which provided a suction-like ventilation. The tests made of the cotton seed on the day in question, twenty-three in all, showed temperatures ranging from 95 to 106 degrees. The humidity was 64 per cent, 3 per cent less than normal for Corpus Christi, where the humidity is generally high due to its close proximity to the Gulf of Mexico.

Two witnesses testified as to seeing Alois Biber at the time or immediately after he suffered the cerebral hemorrhage.

K. M. Newbill testified that on the afternoon of September 8th, he saw Alois Biber at the place of business of the South Texas Cotton Oil Company; that Biber came from the direction of the seed house, stumbled and fell at the corner of the office building; that Biber was gasping for breath, wet with perspiration, unable to talk, "and just passed out at the corner of the office building," and that he and others picked him up and put ice water on him.

J. A. Trammell testified that on the same afternoon he was at the dump (scales) on the west end of the seed house unloading cotton seed; that he saw Mr. Biber for ten to fifteen minutes and he was not doing any strenuous work of any kind at the time. "We were standing there talking and he (Biber) just put his hand to his head and said `oh, my head!' but walked on toward the office."

From the office, Biber was taken to his home and thence to a hospital where his spine was tapped and blood found in the spinal fluid. The next day he died.

In order to establish a causal relationship between Biber's employment and his death, appellees relied upon the testimony of two expert medical witnesses adduced by means of hypothetical questions. These witnesses testified in substance that death could have and probably did result from a cerebral hemorrhage brought on by physical exertion under the hypothesis stated. An examination of the statement of facts discloses that in the hypothetical questions propounded to one of appellees' experts, the following facts were assumed to be true: "that he (referring to Biber) would go up and down steps 40 feet in height and testing cotton seed and shown that on that day 23 tests were made of the heat of the cotton seed in the building by long thermometers pushed into it, which called for him to go over the cotton seed to make those tests."

The question propounded to the other expert contained similar assumptions.

There is no direct evidence that Biber, on the day he suffered the stroke, made any seed tests, climbed any stairs and went onto the catwalk, or did anything necessitating strenuous physical exertion. For proof of these matters, app...