Service Mut. Ins. Co. v. Blain
| Decision Date | 07 December 1939 |
| Docket Number | No. 2190.,2190. |
| Citation | 135 S.W.2d 745 |
| Parties | SERVICE MUT. INS. CO. v. BLAIN. |
| Court | Texas Court of Appeals |
Appeal from Nineteenth District Court, McLennan County; R. B. Stanford, Judge.
Suit under the Workmen's Compensation Act by the Service Mutual Insurance Company of Texas to set aside an award of the Industrial Accident Board in favor of W. A. Blain. From a judgment denying relief, plaintiff appeals.
Reversed and remanded.
Scott & Wilson, of Waco, for appellant.
George Clark and Charles Mooney, both of Waco, for appellee.
This is a workmen's compensation case. W. A. Blain was the employee. Jones Fine Bread Company, Inc., was the employer, and the Service Mutual Insurance Company of Texas was the insurance carrier. A trial before a jury resulted in judgment in favor of the employee. The Insurance Company appealed.
There was evidence that the employee had worked in repairing a bread mixer from 8 o'clock A. M., on May 5, 1938, until 4 o'clock A. M., of the following morning; that this work required him to lift many heavy objects and in close proximity to the ovens used in the bakery, and, as a result, the employee was subjected to extreme heat; that after finishing this particular job the employee rested for a short while and was then put on another job repairing an elevator motor; that this work was done in a penthouse in very close quarters on top of the building where it was extremely hot; and that as a result of this work and the extreme heat to which he was subjected, the employee suffered an injury to his heart which totally and permanently disabled him.
The jury, in answer to special issues, found that on May 6, 1938, the employee suffered an accidental injury to his heart—called a heart block—while working for the employer in the course of his employment, as a direct result of over-exertion in such work. The appellant contends that the evidence was insufficient to support the verdict and that the trial court should have given an instructed verdict in its favor. We are of the opinion that the evidence was sufficient to take the case to the jury, but, in view of the fact that the judgment must be reversed for other reasons, we deem further discussion of this question unnecessary at this time.
There was evidence that the employee had suffered from a similar disability while working in the state of Oregon in the year 1937, and it was contended by the Insurance Company that his present disability was due to the old injury, or to a diseased condition of his body, and not to any injury sustained by him in the course of his employment while working for this particular employer. The evidence before the jury left the question in dispute. The employee relied largely on the testimony of Dr. Coffelt to sustain his contention that he had suffered an injury to his heart on the occasion in question. The Insurance Company did not offer any medical testimony to the contrary. There was evidence that the employer's superintendent, Mr. Horne, had called Dr. Catto, a local physician, to treat the employee when he first became ill at the bakery. There was also evidence to the effect that after this suit had been filed, the claim adjuster for the Insurance Company had called on Dr. Catto and discussed the case with him, but there was no evidence that Dr. Catto was an employee of the Insurance Company or otherwise under its control. With the record in this condition, counsel for the appellee made the following argument to the jury: ...
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Thornton v. Morgan
...reduced, seems to this Court to have been-on the legal equivalent of the same state of facts- correctly stated in Service Mutual Ins. Co. v. Blain, Tex.Civ.App., 135 S.W.2d 745, error dism., j. cor. Without extending the discussion into the varying states of facts our courts have dealt with......
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Southern Underwriters v. Dykes
...from allowing their zeal and enthusiasm in argument to the jury to jeopardize the rights of their clients. Service Mutual Ins. Co. v. Blain, Tex.Civ.App., 135 S.W.2d 745; Liberty Mutual Ins. Co. v. McDaniel, Tex.Civ.App., 102 S.W.2d 493; Safeway Stores, Inc. v. Brigance, Tex.Civ.App., 118 S......
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United Employers Casualty Co. v. Oden
...to instruct the jury not to consider the same. We base our decision upon the prior holding of this court in the case of Service Mutual Ins. Co. v. Blain, 135 S.W.2d 745 and cases there cited. See also: Safeway Stores, Inc., of Texas v. Brigance, Tex.Civ.App., 118 S.W. 2d 812; Indemnity Ins.......
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U.S. Fidelity & Guaranty Co. v. Lewis
...v. Wynne, Tex.Com.App., 44 S.W.2d 946; Morgan v. Maunders, Tex.Civ.App., 37 S.W.2d 791 (error dism.); Service Mutual Ins. Co. v. Blain, Tex.Civ.App., 135 S.W.2d 745 (writ dis.). With respect to the argument complained of in point ten, the following "Gentlemen, the United States Fidelity & G......