Southern Casualty Co. v. Flores

• Court: Texas Supreme Court
• Writing for the Court: Nickels
• Citation: Southern Casualty Co. v. Flores, 1 S.W.2d 260 (Tex. 1928)
• Decision Date: 04 January 1928
• Docket Number: (No. 1017-4907.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: SOUTHERN CASUALTY CO. v. FLORES et al.

Page 260

1 S.W.2d 260

SOUTHERN CASUALTY CO. v. FLORES et al.

(No. 1017-4907.)^*

Commission of Appeals of Texas, Section A.

January 4, 1928.

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

Proceeding under the Workmen's Compensation Act by Gertrude Flores, and others, for the death of her husband, Frank Flores, opposed by Dave Lehr, employer, and Southern Casualty Company, insurer. The Industrial Board denied the claim, and claimants, by way of appeal, brought suit in the district court against the Casualty Company. Judgment for claimants was affirmed by the Court of Civil Appeals (294 S. W. 932), and the Casualty Company brings error. Reversed and rendered.

Frank R. Williams, of San Antonio, for plaintiff in error.

Samuel Belden, Perry J. Lewis, H. C. Carter, Champ G. Carter, and Randolph L. Carter, all of San Antonio, for defendants in error.

NICKELS, J.

A judgment in favor of the beneficiaries for compensation for death of an employee insured in accordance with the Workmen's Compensation Law (articles 8306-8309, R. S. 1925) was affirmed by the Court of Civil Appeals. 294 S. W. 932. Writ of error was allowed upon assignments that the record is devoid of evidence showing or tending to show "death resulting from injury" (article 8306, § 8) which is compensable.

Lehr (the "subscriber") was a cement contractor, having at the time in question a "job" in course of completion at "228 Argyle avenue," San Antonio. The nature of the "job" is not disclosed, except as inferable from the prior completion of a "ribbon driveway" between the front of the "garage" and the "sidewalk." Lehr's employees, including Flores, were supposed to begin actual work at 8 o'clock a. m. Apparently, the tools were kept overnight in the "garage." The distance between the front of the "garage" and the "curb" at nearest side of the street, along the driveway mentioned, is 150.5 feet. From the front of the garage to a point 127 feet toward the street the surface of the driveway gradually rises an aggregate of 9 feet and 2 inches; thence, to the "curb" there is a gradual decline of 2 inches. From the intersection of "Argyle avenue" and "Mary drive" to "228 Argyle avenue" there is an incline "that is several times as steep as the driveway," that intersection being the point of disembarkation for street car passengers going to "228 Argyle avenue." Shortly before 8 o'clock (exact time not given) on the morning in question, Flores arrived (via the street car line, etc.) at the "garage." Thereafter and "about five minutes before 8 o'clock" he left the "garage" and walked up the driveway to a point in the sidewalk (14 feet from the "curb"), there passed Castillo (another employee), and "went on about 8 feet" and "fell" and died immediately or within a few minutes. Castillo was a truck driver for Lehr; he had just arrived at the "job" with some materials and a "work ticket" (to be signed by Flores). As Flores approached, Castillo had the "work ticket" in his hand. Castillo said:

"He was coming toward me along the driveway from the garage. I was on the sidewalk." "I handed him the ticket and he did not receive it, and I asked him, `What else do you need, Frank?' but he never answered and went on about eight feet from where I was and I saw him fall. I rushed up to him and asked him what was the matter; he looked up to me and said, `Nothing.'"

Flores was 33 years of age, weighed about 170 pounds, and, apparently, was strong and "healthy." He had been working for Lehr for some months and, so far as shown, without loss of time from illness or inability of any kind.

Autopsy was performed shortly after death by Drs. Stout and Timmins, and their testimony about what was found is the only direct evidence touching the matters of importance here. Externally, the body was in "good condition" and without evidence of violence; some "old scars" were found on a leg. On the heart and lungs "scars," "old sores," or "lesions" were found. The tissue and "architecture" was otherwise "unchanged," except that the "heart" had "stopped" and "collapsed." Blood was taken from the heart, and upon test it showed "four plus Wasserman," the maximum showing of syphilis. Specimen were cut from the heart, and they tested as did the "blood." The balance of the testimony is deduction. There was agreement upon the proposition that Flores was in that dangerous condition because of "heart trouble" in which death might come with any physical exertion. Some of the experts attributed death to the disease alone; others testified that the exertion of the walk might have been the immediate cause or an immediate contribution to the cause of death.

It is not shown that Flores knew he was expected to sign the "work ticket" at the time he left the garage or afterward, and his conduct and omissions in approaching Castillo and passing him might well leave ground for debate on the question whether in making his last journey he was engaged in or about his master's business, but for instant purposes we assume that he traversed the driveway in order to perform the duty of signing and, thus, in the course of employment. With that assumption indulged, various questions remain: (a) Was there "harm or damage to the physical structure of the body" from Flores' movement at the time? for that is the basis of compensability. Article 8309; section 8, art. 8306. (b) If so, did that "injury" arise out of or originate in the work of the employer? Lumbermen's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 110, 246 S. W. 72, 28 A. L. R. 1402; In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1915A, 310; Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968.

Syphilis and its resultant, of course, had no origin in the employment. Their presence in that degree which converted the slightest physical exertion into invitation to death being shown by evidence in which there is no contradiction, the case belongs to that class in which the supposed "injury" comes "from a hazard to which the workman would have been equally exposed apart from the employment," and, hence, is noncompensable. Id. The testimony relied upon to uphold the claim includes admission that the slightest movement of a limb even while the person with that condition of heart is asleep in bed might well consummate death. The element of "causative danger * * * peculiar to the work," etc., is lacking.

Again: The testimony shows that so far as could be discovered the "tissue," "architecture," etc., of the body had undergone no immediate change, save that one "side" of the "heart" contained too much blood and the other side none at all and, thus, that the "heart" was in part "contracted" and in part "collapsed." If as a result of the walk there was "harm or damage to the physical structure of the body" or consequent "disease or infection" (article 8309) from which death resulted (section 8, art. 8306), attempted establishment of those facts includes the vice (M. P. Ry. Co. v. Porter, 73 Tex. 304, 307, 11 S. W. 324; United States v. Ross, 92 U. S. 284, 23 L. Ed. 707) of superimposed inferences. The evidence and argument on the point is thus summed in claimants' brief:

"In the case at bar the physicians clearly testified that the exertion Flores underwent was ample to injure his weakened heart and cause his death."

The reasoning proceeds: (a) It is possible that the exertion caused some undisclosed "harm or damage to the physical structure of the body," although the same "harm or damage" may as well have occurred if Flores had been walking toward 228 Argyle avenue in search of employment; therefore, some such "harm or damage" did occur. (b) Since "harm or damage" did occur, although its nature or degree is unknown, it caused or contributed to cause death. The basic data, it may be conceded, make up a scintilla of evidence; but so long as the doctrine of Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059, remains in effect, the data cannot be regarded as evidence itself touching the important matter.

The Workmen's Compensation Law does not provide for health or accident insurance; and because it does not go that far, Flores' death must be regarded as beyond its reach.

There have been cited in support of the claim cases from England and various jurisdictions in this country, and in reading those cases we have had references to others. But we find in none of them support for the contention; on the contrary, when the differences between the relevant provisions of the statutes of England and of those states on the one hand, and those of our act, upon the other, are kept in mind along with the differences of evidence in those cases as compared with that in the present record, the authority is against the claim. This has illustration in the English cases. In Clover, Clayton & Co. v. Hughes, 1910 App. Cas. 242, 3 B. W. C. C. 275, and McArdle v. Swansea Harbour Trust 11 Neg. Comp. Cas. Ann. 175, there was proof of "exertion" and of an actual "rupture of an aneurism" and that immediately before the "straining" the "rupture" had not occurred. Yates v. So. Kirby, etc., Collieries, 3 B. W. C. C. 418, and Pugh v. L. B. S. Coast Ry. Co., 2 Q. B. 248, exhibit instances of fright and nervous shock ripened in fact into neurasthenia (a physiological alteration) with consequent impairment of capacity. "Compensation" as for "accidental injuries," etc., was allowed in each of the three cases first mentioned, and in the last a recovery was permitted under a policy covering "all accidents, however caused, occurring to the insured in the fair and ordinary discharge of his duties." In O'Hara v. Hayes, 3 B. W. C. C. 419, it appears, a workman in discharge of duty was hurrying with a parcel (weighing seventeen pounds) to a railway station and while doing so "dropped dead"; in Kerr v. Ritchies, 6 B. W. C. C. 419, it is shown that the workman had been...