Service Mut. Ins. Co. of Texas v. Banke
| Decision Date | 15 October 1941 |
| Docket Number | No. 11062.,11062. |
| Citation | 155 S.W.2d 668 |
| Parties | SERVICE MUT. INS. CO. OF TEXAS v. BANKE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Twenty-Eighth District, Nueces County; W. B. Hopkins, Judge.
Suit under the Workmen's Compensation Act between Lydia Banke and the Service Mutual Insurance Company of Texas, insurance carrier, to set aside an award of the Industrial Accident Board. From an adverse judgment, the insurance carrier appeals.
Reversed and rendered.
Scott & Wilson, of Waco, for appellant.
Clifford Craig and E. P. Haney, both of Dallas, for appellee.
This is a workmen's compensation case in which Lydia Banke, as beneficiary, recovered compensation for the alleged accidental death of her husband, A. F. Banke, while on his employer's business. The Service Mutual Insurance Company of Texas, the admitted insurance carrier, has appealed.
The decedent, A. F. Banke, was employed as a night watchman on the water front at Corpus Christi by DePuy, a contractor, who was constructing a sea wall there. Banke had been steadily on that job for seventeen months at the time of his death. It was his duty to patrol the construction job along the water front, and perform certain work in connection therewith. His hours of work were from 6 p. m. to 6 a. m. daily. He went on the job as usual at 6 p. m. July 23, 1940. He was seen at work out on the job by his son at 11:30 that night. Five hours later, at 4:30 a. m., when it began to rain on the water front, Banke took shelter in a truck operated by another watchman employed on an adjoining job by another contractor. Banke visited with his neighbor for a few minutes and went back towards his beat. He was never seen alive thereafter. At 6:30 a. m. on the following day his body was found in nine feet of water some distance away from his beat and from where he was last seen. There were no abrasions on his body, or any other evidence of external injury. No post-mortem examination was made, nor autopsy held, upon the body. The depth of the water where he was last seen alive was not shown. Decedent was, or at least until recently had been, an excellent swimmer; his health was apparently good at the time and had been for several years. The circumstances or cause of his getting into the water, or whether his death was from drowning or other causes, are matters of the purest conjecture, unless it may be presumed from recitals in a coroner's death certificate issued by the local justice of the peace after the dead body was taken from the water.
The record shows, without dispute, that in 1931 Banke suffered an electric shock which knocked him from a post and threw him to the ground from an elevation of fourteen feet. He was rendered unconscious and remained so for two hours. He was under treatment of several doctors in a hospital and afterwards in his home, and was disabled for two years as a result of the shock, which affected his circulatory system and subjected him to frequent fainting spells during that period. We must assume from the record that none of the results or symptoms of that injury had been manifest during the past eight years, and that, on the other hand, his health had been apparently excellent during that period. The expert medical testimony given upon the trial was that it was equally as probable that Banke met his death as a result of a heart attack as it was that it was caused by accidentally falling in the water and drowning in consequence thereof.
The jury resolved all appropriate issues in favor of appellee. These findings were efficiently challenged by appellant as being without any support by competent evidence. We are of the opinion that appellant's contention should be sustained, unless the findings are supported by recitals in the coroner's verdict, now to be noticed.
As stated, a justice of the peace held an inquest upon the body of decedent...
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