Midwestern Ins. Co. v. Wagner

• Decision Date: 06 September 1963
• Docket Number: No. 3783,3783
• Citation: 370 S.W.2d 779
• Parties: MIDWESTERN INSURANCE COMPANY, Appellant, v. Mallie WAGNER, Appellee.
• Court: Texas Court of Appeals

Page 779

370 S.W.2d 779

MIDWESTERN INSURANCE COMPANY, Appellant, v. Mallie WAGNER, Appellee.

No. 3783.

Court of Civil Appeals of Texas, Eastland.

Sept. 6, 1963.

Rehearing Denied Oct. 4. 1963.

Clayton, Martin & Harris, Amarillo, for appellant.

Scarborough, Black & Tarpley, Abilene, for appellee.

GRISSOM, Chief Justice.

On December 13, 1961, W. H. Wagner was a truck driver for Texas Tank Lines, Inc. About 12:00 o'clock at night he arose for the purpose of going to his employer's yard, starting a diesel truck and hauling asphalt for his employer. The temperature was below freezing and it was misting. He went to his employer's yeard, tried to start the defendant's truck, being unable to start it, he went to the home of his employer's mechanic, told him he had been trying unsuccessfully to start the truck and asked the mechanic to help start it. The mechanic agreed to do so and Wagner drove his automobile back to the truck. The mechanic lived just off the employer's yard. He quickly dressed and went to the truck. When he got there Wagner was standing beside the truck. The mechanic started it. Wagner climbed into the truck and drove it across his employer's yard to a maintenance house on the yard where a fire was burning. Wagner left the truck running in an attempt to melt ice off the truck and went with the mechanic into the maintenance house where there was another employee. They stood and talked by the fire about ten minutes. Wagner then fell to the floor, gasped once or twice, and died. His widow brought this suit to recover death benefits under the workmen's compensation law.

Issues were submitted to a jury and answered as follows:

1.

'Do you find from a preponderance of the evidence that immediately prior to his death that W. H. Wagner suffered a heart attack as the result of a strain or overexertion?--ANSWER: Yes.'

2.

'Do you find, from a preponderance of the evidence, that immediately prior to his death that W. H. Wagner was engaged in the course of his employment for TEXAS TANK LINES, INC.?--ANSWER: Yes.'

3.

'Do you find, from a preponderance of the evidence, that the work, if any you have found, that W. H. WAGNER was doing in connection with his employment with TEXAS TANK LINES, Inc., was a producing cause of his heart attack?--ANSWER: Yes.'

4.

'Do you find, from a preponderance of the evidence, that the death of W. H. WANGER was not due solely to disease wholly independent of any injury, if any, sustained by him?--ANSWER: It was not due solely to disease.'

The court rendered judgment for the plaintiff for $11,334.31. The insurance carrier has appealed.

Appellant's first point is that, the cause of Wagner's death being in dispute, the court erred in admitting in evidence a copy of Wagner's death certificate executed by a Justice of the Peace and certified by the County Clerk. The court erred in admitting said certificate. Service Mutual Insurance Company v. Banke, Tex.Civ.App., 155 S.W.2d 668, (Writ Ref.); Boehme v. Sovereign Camp Woodmen of the World, 98 Tex. 376, 84 S.W. 422; Universal Life & Accident Insurance Company v. Ledezma, Tex.Civ.App., 61 S.W.2d 165, 166; Armstrong v. Employers Casualty Company, Tex.Civ.App., 357 S.W.2d 168, 170; Washington National Insurance Company v. Chavez, Tex.Civ.App., 106 S.W.2d 751, 752, (Writ Dis.); Article 4477, Rules 41a, 51a and 54a, Vernon's Ann.Civ.St. The certificate recited that Wagner died as a result of a heart attack. While that fact was not expressly admitted, it is evident from the entire record that there was actually no controversy over the fact that Wagner's death was caused by a heart attack. It is undisputed that Wagner, who was about 62, arose on a very cold, damp night, drove to his employer's premises, spent some time trying to start a cold truck, was unable to start it, got another employee to start it for him, drove the truck to a house on the employer's premises where a fire was burning, left the engine running in order to melt ice off the truck, went inside, and ten minutes later, while talking to two other employees, fell to the floor, gasped once or twice, and died. Appellant says there was a serious dispute as to the cause of death. We think this statement is not supported by the record. Appellant presented no evidence, its cross examination was not directed against the conclusion, which was evident, that Wagner died from a heart attack. The real controversy was whether the work Wagner did in the course of his employment immediately before his death caused the heart attack. We conclude that admission of said certificate was not reasonably calculated to cause and did not probably cause rendition of an improper judgment. Texas Rules of Civil Procedure, rule 434.

Appellant's second point is that the court erred in overruling defendant's objection number one to issue one because the jury was not thereby restricted to strain or overexertion in the course of Wagner's employment. The third point is that the court erred in overruling defendant's objection number two to the charge wherein it pointed out that the charge did not submit any issue inquiring whether Wagner suffered a personal injury to his body which was a producing cause of his death. The fourth point is that the court erred in overruling defendant's objection number five to the charge and in submitting issue on which inquired whether Wagner suffered a heart attack as a result of strain or overexertion, because there is no evidence that Wagner suffered a heart attack as a result of strain or overexertion. The fifth point is that the court erred in overruling appellant's fifth objection to the charge and in thereafter submitting issue one inquiring whether Wagner suffered a heart attack as a result of strain or overexertion, because the evidence is insufficient to support said issue. The sixth point is that the court erred in overruling grounds two and eleven of appellant's motion for judgment non obstante veredicto, because there is no evidence that Wagner suffered a heart attack as a result of strain or overexertion. The seventh point is the same as the sixth except it presents the contention that the answer to issue one that Wagner suffered a heart attack as a result of strain or overexertion is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

There was testimony from which the jury had a right to conclude that Wagner strained or overexerted himself by climbing in and out of the truck and that such action caused his heart attack and death. Approximately two hours passed between the time Wagner arose, went to the employer's premises under abnormal weather conditions in the middle of the night, attempted to start the truck, was unable to do so and, finally, got it started by his employer's mechanic drove to the maintenance house on the employer's premises, left the engine running in an attempt to melt ice off the truck, talked about ten minutes with his fellow employees and fell dead. There was evidence that even mild exertion will quicken the heartbeat and place a greater strain on the heart than exists while a person is not exerting himself and that the exertion in evidence caused Wagner's death. A hypothetical question, which included...