Insurance Company of North America v. Chinowith

• Decision Date: 18 June 1968
• Docket Number: No. 25188.,25188.
• Citation: 393 F.2d 916
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Ruby Fay CHINOWITH, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

393 F.2d 916 (1968)

INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Ruby Fay CHINOWITH, Appellee.

No. 25188.

United States Court of Appeals Fifth Circuit.

May 2, 1968.

Rehearing Denied June 18, 1968.

Richard A. Hall, Branscomb, Gary, Thomasson & Hall, Corpus Christi, Tex., for appellant.

Bob J. Spann, McDonald, Spann & Smith, Corpus Christi, Tex., for appellee.

Before COLEMAN, AINSWORTH and DYER, Circuit Judges.

COLEMAN, Circuit Judge:

James C. Chinowith died in a hospital in Corpus Christi on April 2, 1965, his fortieth birthday. The cause of death recited in the official death certificate was "pulmonary hydrothorax due to extensive metastasis from melanocarcinoma". In lay language this meant that a watery collection on the lungs was the immediate cause of death, but this condition was caused by one of the many forms of cancer. Chinowith had had a rather extensive melanoma removed from his body in 1959 but periodic x-rays had been negative up to a not definitely fixed time prior to his death. It appears that in 1953 he had injured his back in a fall from a tree.

In July, 1964, Chinowith sustained an on-the-job injury when some heavy pipe he was unloading slipped and caught his legs between a load of pipe and the pipe wrack. This injury prompted the suit here on appeal. In the District Court, the widow, suing for herself and four minor children of the deceased, recovered a Workmen's Compensation judgment for $13,916.75 and the insurance carrier appeals.

At the trial below the defendant rested on the plaintiff's proof and moved for a directed verdict, which was denied. A motion for judgment notwithstanding the verdict was also denied. These denials, in addition to the denial of a plea of no jurisdiction, are now pressed as erroneous. We find that the District Court had jurisdiction of the diversity action but we are of the opinion that the motion for a directed verdict should have been granted. Accordingly the judgment must be reversed.

We discuss first the jurisdictional question. Appellant strongly urges that the sole and exclusive right of each of the workmen's compensation claimants is separate and apart from the right of the other, therefore their separate claims cannot be aggregated in order to supply the required jurisdictional amount in a diversity action. This contention is squarely supported by the decision of the United States District Court for the Western District of Texas in Employers Mut. Cas. Co. v. Maggart, 261 F.Supp. 768 (1966). The point is here argued extensively by both sides, with much citation of authority, none exactly in point other than Maggart. Our analysis of the Texas statute, Art. 8306, Sections 8 and 8a, of the Texas Revised Civil Statutes Annotated (1923) convinces us that it confers one right of recovery and one amount to be recovered, even though that recovery must be divided according to the Texas laws of descent and distribution. This being true, if the one amount sought under one right of action exceeds $10,000, as was the case here, then diversity jurisdiction may be exercised, Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L. Ed.2d 890 (1961); Purdy v. Aetna Casualty and Surety Co., 5 Cir., 1961, 296 F. 2d 196.

On the question of liability the parties had to agree and do agree that, in order to recover, plaintiff-appellees were required to establish the following sequence: (1) Chinowith sustained an injury on July 25, 1964 which (2) necessitated surgery on March 12, 1965, during which (3) a pre-existing cancerous condition was aggravated and accelerated, which (4) caused the death three weeks later. Chinowith's original injury and death are, of course, clearly established. It is extremely doubtful that Step 2 was proven and we find no evidence in the record to support a favorable answer as to Step 3.

The doctor who diagnosed Chinowith's condition immediately prior to the surgery of March 12, 1965, and who performed the operation which succeeded in the correction of a back condition, did not take the witness stand. Neither did the orthopedist who saw Chinowith the previous August, after which he returned to work. For medical proof, plaintiffs relied altogether on the testimony of the company doctor who saw and treated deceased immediately after the July injury but had not professionally seen him since. By request this doctor had assisted in the surgery of March 12 but did not see the patient thereafter. This leaves gaping chasms in the proof as to both necessity and causation. The doctor came to the witness stand without his office notes or records. Consequently, as any busy physician would likely be, he was often vague, indefinite, and uncertain in response to crucial inquiries. There was much discussion of a hypothetical or theoretical nature but the underlying facts upon which such hypotheses or theories might have been supported were not supplied.

We now view the evidence in that light most favorable to the plaintiff-appellee.

Without the clutter of repeated quotation marks the following is a fair résumé, in almost his exact words, of the testimony of Dr. Sidney C. Ray, the physician in question.

I saw Mr. Chinowith in my office within forty-eight hours after the injury to his legs. I put him on medication for pain, heat to the contused areas on his thighs and an enzyme preparation to help "resolve the bruising". The patient had sustained severe bruises to the upper 1/3 of both thighs, where the drill pipe had struck him. He was complaining of severe pain and walked with a limp. X-rays of the thighs revealed no fracture. There was some limitation of motion at the knee and the hip because of muscle damage. There was a collection of blood and fluid under the skin on the left thigh, known as a hematoma. I prescribed heat and the enzyme preparation and might have refilled his pain medication. The patient appeared to be in his late twenties or early thirties although he was actually thirty-nine. He was quite robust and possibly slightly overweight. His general health appeared to be good. I continued to see the patient "intermittently from July through September, and the condition in his legs resolved, and in early September had completely...