Norwich Union Indemnity Co. v. Smith

• Decision Date: 09 January 1929
• Docket Number: (Nos. 1139-5088.)
• Citation: 12 S.W.2d 558
• Parties: NORWICH UNION INDEMNITY CO. v. SMITH et al.
• Court: Texas Supreme Court

12 S.W.2d 558

NORWICH UNION INDEMNITY CO. v. SMITH et al.

(Nos. 1139-5088.)

Commission of Appeals of Texas, Section A.

January 9, 1929.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by the Norwich Union Indemnity Company against Mrs. Homer Smith and others to cancel an award of compensation, in which defendants reconvened. Judgment for defendants was affirmed by the Court of Civil Appeals , and plaintiff brings error. Affirmed.

See, also, 298 S. W. 403.

Spell, Naman & Penland, of Waco, for plaintiff in error.

Pat M. Neff and Joe W. Hale, both of Waco, for defendants in error.

NICKELS, J.

Upon award of compensation as for injuries resulting in death of Homer Smith (husband of Mrs. Smith and father of the other claimants), Norwich Union Indemnity Company (insurer) brought suit to cancel. Mrs. Smith and (minor) daughters reconvened, all in accordance with terms of the Workmen's Compensation Law (article 8307, § 5, R. S. 1925). Judgment for compensation in a "lump sum" (article 8306, § 15, R. S. 1925) resulted; the insurer appealed, and the judgment was affirmed. 3 S.W.(2d) 120.

Writ of error was allowed upon asserted conflict of decisions touching subject-matter of assignments presented.

1. Lucille Smith testified that her father "told her that he fell." This occurred, she said, "about forty or forty-five minutes * * * after he had been brought home." How much time was consumed in taking him home is not definitely shown.

Dr. Collins testified that Homer Smith told him (in giving history of his trouble) that "he suffered a fall." That statement was made to Dr. Collins "approximately six weeks after the occurrence" (i. e. the "fall").

Dr. Smith testified to a like statement made to him by Homer Smith some "eight weeks after the alleged injury."

Apparently, the inception of whatever injury in the course of employment Homer Smith received was a fall on a roof which he was painting. The testimony just detailed (and some yet to be mentioned) comprises the whole of the direct evidence on the matter of such a "fall."

The hearsay character of the testimony of Miss Smith and of Drs. Collins and Smith was duly raised and preserved and is the subject of assignments 1 to 4, inclusive.

Dr. Harrington, a physician who treated Homer Smith, testified for the indemnity company. He stated that he was called to see Smith "and found him in bed," whereupon Smith "told him he had had a fall and injured himself." According to Dr. Harrington, this happened "several days later than" February 12, 1925 (date of alleged injury) — "maybe, five or six days after that." This testimony was given on direct examination by counsel for indemnity company, and without objection made and preserved and without motion to strike or requested instruction for its nonconsideration by the jury.

Florio appeared as a witness for Mrs. Smith et al. Upon cross-examination it appeared that on May 5, 1925, he had signed a "statement" of the events of February 12th, etc. The "statement" was introduced by counsel for the indemnity company. It includes this declaration:

"About two weeks after that" (i. e., after a visit to Smith's house "about" February 15, 1925) "Smith came on the job across the street from the Proctor street job" (locus of the alleged injury) "and there mentioned he had slipped on wet paint on the roof and fell on a roof-jack on February 12th."

This evidence was not in any wise restricted, nor was its exclusion or restriction moved.

In our opinion the testimony of Dr. Harrington and the "statement" of Florio, in the record as it is, precludes reversal for error, if any, in the admission of the testimony of Miss Smith and of Drs. Collins and Smith. Houston, E. & W. T. R. Co. v. Jackson (Tex. Com. App.) 299 S. W. 885, 887, and cases there cited. And this renders immaterial consideration of the asserted conflicts between the decision by the Court of Civil Appeals here and decisions in Newman v. Dodson, 61 Tex. 91; Panhandle & Santa Fé R. Co. v. Huckabee (Tex. Civ. App.) 207 S. W. 329; M. K. & T. Ry. Co. v. Sanders, 12 Tex. Civ. App. 5, 33 S. W. 245, and M. K. & T. Ry. Co. v. Smith (Tex. Civ. App.) 82 S. W. 787.

2. Lack of evidence of Homer Smith's death as a result of injury is the basis of the fifth assignment.

There is evidence to these points:

(a) Homer Smith, aged 63, was apparently in good general health on and for a long time prior to February 12th, 1925, his "health before this accident was all right; he was always able to work, and he hadn't been sick at any time before this accident in recent years; it had not been necessary to call a doctor to see him for any purpose; he had not ever missed a single day" (in work) "for years before * * * on account of his health."

(b) On February 12, 1925, he was engaged in his work of painting a roof, using therein a roof jack upon which he sat or stood. Florio was working inside the building. About 2 o'clock in the afternoon Smith called out for Florio. Florio went to Smith and found him "lying on his side with his elbow on the jack," or "lying on his side on the roof jack"; "he was lying down on his side propped up on his elbow." Smith appeared (to Florio) to be "hurting about his chest"; "he couldn't get his breath, and couldn't speak"; "he grabbed himself in the chest; the pain would be intense when he would go to talk, and he would catch his breath"; "he just crumpled over; * * * he grabbed his chest whenever that pain would strike him." Florio and Goss took Smith from the roof, helped him into an automobile, and Goss drove him to his (Smith's) home a mile, maybe, two miles, distant. During the trip it appeared to Goss that Mr. Smith was "suffering"; "he was out of breath mostly"; "he complained about this smothering feeling in his chest." Miss Smith thus described her father's condition:

"During the forty-five or fifty minutes that I speak of that intervened from the time he was brought home until he engaged in this conversation * * * his condition * * * as to pain and being able to talk was that he would just kind of hold on along here" (illustrating) "and lean over and he couldn't walk straight and couldn't stand up and couldn't get his breath and he couldn't talk very well."

(c) At locus of the "pain," as pointed out by Mr. Smith, there was "a pressed-in place," an area of the "breast" "just sunk in" as noticed by Miss Smith on February 13th. This was not seen by other members of the family at that time or by the physician who first treated Mr. Smith. Dr. Smith was called in several days later and found a "depression" "three or four inches in length," "about the width of one rib" ("the third or fourth rib possibly"), "in the right side" and "deep enough to be perceptible through the bandage." Dr. Smith called this to the attention of Gordon Smith; Gordon estimated depth of the depression at "three quarters of an inch or may be an inch below the level of the skin." An opinion of Dr. Smith is thus stated: "From that depression as I observed it, if this bone was left at that place a sufficient length of time, it would produce an irritation of the lung tissues between that and the rib, or could do it at least." He added: "The worst pain that Mr. Smith complained of in his body was this in his right chest, where that depression was." As noted, Dr. Harrington, who first treated Mr. Smith (maybe within an hour after he was brought home, maybe several days later) did not observe a "depression," but he does not remember whether Mr. Smith "was stripped entirely to his waist or not"; he remembers "baring the front part of his chest"; he "examined the chest with moderate care" and ordered it "bandaged" (on the first visit). According to Miss Smith's testimony, Dr. Harrington's first treatment consumed "about a minute," and consisted of "giving a hypodermic." Dr. Harrington says he first treated Mr. Smith for "traumatic pleurisy" due to "his fall," in view of Smith's statement that he "fell"; since Mr. Smith's condition did not improve, an X-ray examination was provided for by Dr. Harrington. The "pictures" were made by Dr. Collins and Dr. Harrington's examination of them revealed "some indication that possibly his rib had been fractured and the ends not separated. * * * There was a shadow there that indicated that possibly." But Dr. Harrington's opinion, after further study of the "pictures" and "examination of Mr. Smith," is "there was no fracture there — no recent fracture of his rib." Dr. Collins testified that his examination did not disclose a fracture or the "depression" noticed by Miss Smith (before that examination) and by Dr. Smith, Gordon Smith and others (after Dr. Collins' examination). And while Dr. Collins said (on direct examination by counsel for indemnity company) that he "stripped him off and examined him all over and examined his chest," on re-direct examination he said that Mr. Smith "was complaining of pain at the collar bone, * * * and I examined him there, which is above the nipple about two inches" (the "depression" mentioned having been "below the nipple").

(d) Mr. Smith's bad condition steadily progressed (he was "desperately sick," in Dr. Collins' opinion, at time of the examination just mentioned) until his death April 14, 1925. In progress of the condition hemorrhages developed.

(e) Dr. Collins thought Mr. Smith had "Bright's disease"; "enlarged heart"; arterial sclerosis"; pains from "calsified cartileges" near the right shoulder; "about half as much red blood cells as he ought to have had" (caused, probably, by "general toxemia from his gums and mouth"). Death, he thought, was attributable to "his human ailments, all of them, collectively and concurrently." Dr. Collins' views, in the main, had Dr. Harrington's concurrence.

(f) There was substantial agreement amongst the physicians on the point that a rib fractured or depressed, in the general manner described by Miss Smith, Dr. Smith, and others would be an adequate...