Pan Am. Fire & Cas. Co. v. Reed, 7896

• Decision Date: 30 December 1968
• Docket Number: No. 7896,7896
• Citation: 436 S.W.2d 561
• Parties: PAN AMERICAN FIRE & CASUALTY COMPANY, Appellant, v. Irene Bernice REED, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 561

436 S.W.2d 561

PAN AMERICAN FIRE & CASUALTY COMPANY, Appellant, v. Irene Bernice REED, Appellee.

No. 7896.

Court of Civil Appeals of Texas.

Amarillo.

Dec. 30, 1968.

Rehearing Denied Feb. 3, 1969.

McCown, Sheehan & Dubuque, Frank D. McCown, Dumas, of counsel, for appellant.

Linn, Helms & Countiss, Spearman, Richard N. Countiss, Spearman, of counsel, for appellee.

DENTON, Chief Justice.

This is a suit for death benefits under the Workmen's Compensation Act. The trial court, without a jury, rendered judgment for the plaintiff below.

Arthur Dwight Reed, the deceased, was a 57-year-old truck driver employed by Super Service, Inc. of Spearman, Texas. On December 27, 1966, the day of his death, Reed had reported to work between 7 and 8 a.m. It was a cold day with some snow on the ground. His usual assignment was to haul salt water in one of his employer's large trucks with a 5500-gallon tank. There is no direct testimony that he did this that morning, but his employer and fellow employees testified he drove a similar truck to a refinery that afternoon and obtained a load of butane. This involved a round trip of approximately 106 miles. He arrived at his employer's storage area at approximately 5:00 o'clock p.m. He unhooked the trailer loaded with butane and left the trailer in this storage area. He was assisted in this operation by Roy Dry, a fellow employee. Reed then drove the tractor approximately two miles to his employer's office in Spearman, arriving there at approximately 5:30 p.m. Another employee, Herschal Ooley, saw Reed as he pulled up on the lot. They discussed the weather and Reed told Ooley that he believed he would drain the pump on the tank used for hauling salt water. They parted and some 30 minutes later Ooley saw Reed lying on the ground in front of his truck. Reed was pronounced dead at the scene by a local physician.

In its findings of fact and conclusions of law, the trial court found: that Reed suffered a heart attack on December 27, 1966 and that such attack was the cause of his death; that the heart attack was caused by strain and overexertion; that it was accidental and was sustained in the course of his employment; that such work, in the course of his employment, was the producing cause of his heart attack; and the death of Reed was not due solely to disease wholly independent of the injuries sustained by him.

Appellant contends there is no evidence and insufficient evidence to support the trial court's findings that Arthur Reed suffered a heart attack, and that this was the cause of his death; that the heart attack was caused by strain and overexertion; and that the work being performed by Reed was the producing cause of his heart attack. It is well settled that a heart attack caused by strain or overexertion is an accidental injury to the physical structure of the body within the meaning of the Workmen's Compensation Act. Proof thereof, which occurred in the course of employment, is sufficient to show a causal connection between the injury and the employee's death resulting from such heart attack. Midwestern Insurance Company v. Wagner (Tex.Civ.App.) 370 S.W.2d 779 (n.r.e.). Texas Employers' Insurance Association v. Talmadge (Tex.Civ.App.) 256 S.W.2d 945 (n.r.e.). Aetna Casualty & Surety Company v. Calhoun (Tex.Civ.App.) 426 S.W.2d 655 (n.r.e.).

We shall first consider only the evidence favorable to the findings in considering the 'no evidence' points. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660. Higginbotham v. O'Keefe (Tex.Civ.App.) 340 S.W.2d 350 (ref. n.r.e.). Approximately 30 or 40 minutes prior to his death, Reed drove the large trailer-tractor upon his employer's storage yard. Roy Dry, a fellow employee, was present and assisted Reed in unhooking the trailer. This consisted of placing blocks under the tractor to prevent it from moving; lowering the 'dolly'; and unhooking the fifth wheel. This required the operator to lower the dolly or legs of the trailer in order for them to support the trailer when the tractor was driven out from under it. The disengaging and lowering of the legs required stooping and bending underneath the trailer and some 'pulling and pushing'. The trailer's right leg had been previously bent and 'some times' it caused difficulty to disengage and place it in the proper position. When this was completed Reed then drove the tractor some two miles to his employer's office. He and Ooley discussed the weather. Ooley told him: 'Well, Arthur, according to the radio it is supposed to get pretty cold.' Reed replied: 'Well, I believe I will go around there and drain the pump', referring to the pump on the truck which was used for hauling salt water, to prevent it from freezing. This was done by opening a 'quick snap-on' valve and pulling a hose out of the connection. Ooley testified it is 'difficult to pull the hose out because the hose for that trailer was too long * * * it had to be crinkled...