Southern Underwriters v. Hoopes
| Citation | 120 S.W.2d 924 |
| Decision Date | 13 October 1938 |
| Docket Number | No. 10812.,10812. |
| Parties | SOUTHERN UNDERWRITERS v. HOOPES et al. |
| Court | Court of Appeals of Texas |
Battaile & Burr, of Houston, for plaintiff in error.
Devereaux Henderson and Morris Pepper, both of Houston, for defendants in error.
This appeal in a compensation case, advanced here pursuant to this Court's Rule XI(c), is from a judgment awarding claimants compensation against the insurer, entered on a jury's verdict in response to special issues, wherein it had been found that claimants' husband and father, William D. Hoopes, deceased, had sustained a compensable injury on April 14 of 1937, from which he afterwards died, while in the course of his employment for J. B. Handley, a subscriber under the Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., whose risks as such employer were carried by such insurer.
Inveighing here against that adverse judgment below, the insurer, the Southern Underwriters, through a total of ten propositions, makes in substance these three contentions:
(1) There was no evidence, or at least insufficient evidence, to support the finding of the jury, under special issue No. 3, that at the time of such alleged injury the deceased had a pre-existing diseased condition of his heart, which, under the law, was an indispensable prerequisite, since the undisputed evidence showed that his death had resulted from a heart affection—coronary occlusion—which could not have been caused by the work he was then performing, in the absence of such pre-existing heart disease.
(2) There was no evidence, or at least insufficient evidence, to sustain the finding of the jury, under special issue No. 2, that at the time of such alleged injury the deceased had strained his heart in lifting a heavy timber, which, under the claimants' pleadings, was an indispensable prerequisite, since they had therein predicated their right to a recovery solely on the averment that he had sustained such a strain, thereby causing damage or harm to the physical structure of his body.
(3) There was no evidence, or at least insufficient evidence, to support the finding of the jury, under special issue No. 11, that the death of the deceased was not caused solely by disease.
None of these contentions, it is determined, should be sustained; in view of what seems to this Court to be the plain sufficiency of the evidence to support the verdict in each and all of the three challenged particulars, the argument of plaintiff in error's able counsel, though syllogistic and logical from the premises chosen, is inept in the selection of that foundation for it; it would serve no useful purpose to here undertake to detail the great body of the evidence upon which these three findings rest, nor even a recapitulation of it, but it is deemed sufficient to point out that it has been carefully and laboriously gone through, with the resulting finding stated.
The testimony was of two kinds, that of three physicians who spoke as experts, two of whom in response to hypothetical questions only, one both in response to such questions and upon his own examination of the deceased; second, that of deceased's wife—a trained nurse, who spoke both as an expert and as an ordinary observer— together with several other unskilled witnesses who spoke from knowledge of the facts, and observation of and experiences with the deceased; in addition, as a third species of evidence, certain statements of the deceased himself immediately after the claimed accident were admitted under the rule of res gestae.
(1) The physicians referred to, Drs. Brumby, Alvarez and Van Werden, all testified to the effect that the deceased, Hoopes, had a pre-existing disease of the...
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