Texas Emp. Ins. Ass'n v. Hicks, 3082
| Decision Date | 07 May 1954 |
| Docket Number | No. 3082,3082 |
| Citation | 271 S.W.2d 460 |
| Parties | TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Mealie HICKS et al., Appellees. |
| Court | Texas Court of Appeals |
McMahon, Springer, Smart & Walter, Abilene, for appellant.
Scarborough, Yates, Scarborough & Black, Abilene, for appellees.
This is a Workmen's Compensation case. Mrs. Mealie Hicks, widow of Arthur R. Hicks, deceased, Ima Jean Hicks and Willie D. Hicks, children of the deceased, filed a claim for compensation with the Industrial Accident Board asserting that the said Arthur R. Hicks had sustained a fatal injury in the course of his employment with Texas Mill & Elevator Company. The Board awarded compensation to Mrs. Hicks and Ima Jean Hicks but denied the claim of Willie D. Hicks. Texas Employers' Insurance Association gave notice of appeal and filed this suit seeking to set aside the award. Mrs. Hicks and Ima Jean Hicks answered and sought judgment against the insurance company for death benefits under the compensation statutes. On a trial the jury found that (a) Arthur H. Hicks sustained a personal injury; (b) such injury was sustained by Arthur R. Hicks in the course of his employment; (c) such injury was the producing cause of Arthur R. Hicks' death and (d) the death of Arthur R. Hicks was not due solely to disease. Based upon the finding of the jury, the court entered judgment for Mealie Hicks and Ima Jean Hicks against Texas Employers' Insurance Association. From this judgment the insurance company has appealed.
By its first point, appellant urges the trial court erred in overruling and not sustaining its objections to certain testimony of the witness Mealie Hicks. The evidence discloses that Arthur R. Hicks, on August 13, 1953, and for approximately twenty-seven years prior thereto, had been employed by the Texas Mill & Elevator Company in Abilene. There was evidence that on said date, while working for said company, Arthur R. Hicks sustained a personal injury while lifting some sacks of feed as a result of which he died. Plaintiff offered to prove by Mrs. Hicks that her husband told her when he reached home on the day he was injured how he sustained said injury. At the time plaintiff offered the evidence, counsel for appellant asked the court to retire the jury and asked and obtained permission of the court to examine the witness on her voir dire for the purpose of making an objection to the evidence.
Counsel for appellant did examine the witness in the absence of the jury concerning the statement made to her by her husband with reference to how he got hurt. He made an effort to have the witness fix the date when said statement was made. In order to get the record fairly stated, we quote the following from the Statement of Facts:
'(Whereupon in the absence of and out of the presence and hearing of the jury, the following proceedings occurred)
'Cross Examination by Mr. Mahon:
'Q. Mrs. Hicks, I had in mind, when I asked the Court to excuse the jury that counsel was getting ready in the next question or two or somewhere down the line, to ask you to detail what Mr. Hicks might have said to you about getting hurt while working and it is in regard to that that I want to question you in the absence of the jury. Now, he did tell you on one occasion that he did get hurt? A. Yes, sir.
'Q. You remember what day that was? A. Well, it was round the thirteenth, as well as I remember.
'Q. Around the thirteenth? A. Yes, sir.
'Q. He worked until the twenty-second of August, didn't he? A. Well-twenty-second? Well, he worked three or four days. Well, I just can't remember just the exact time.
'Q. You heard the Mill superintendent testify that he worked until the twenty-second of August? A. Yes, I heard that. At that time, I just don't remember.
'Q. You are alleging here that this accident occurred on or about the thirteenth day of August? A. Yes.
'Q. So, that he either worked eight or nine days after he was supposed to have been hurt, is that correct? A. Well, I just can't remember that right time.
'Q. Now, in your deposition you testified that he told you this two or three days before Doctor Strole was called to look after him? A. Well, he went to Doctor Strole's office.
'Q. He had Doctor Lonnie Hollis for his family physician? A. Well, we had used him but he called him up the last day and he wasn't in.
'Q. But you do recall that it was two or three days before he went to Doctor Strole that he told you about getting hurt? A. Well, as well as I remember it was.
'Q. That's the first time he told you about it? A. Yes, sir.
'Q. Now, do you know what date he went to Doctor Strole? A. No, sir, I don't remember.
'Q. Did Doctor Strole immediately take him to the hospital? A. No, sir.
'Q. What did he do, put him to bed at home? A. Well, he come back home and he said that-I asked him when he came back what he said was the matter with him and he said the didn't tell him. He said, he said come back and he would take some x-rays-he went to him on Friday.
'Q. Went to him on a Friday? A. Yes, and he told him to come back a Tuesday and he would take some x-rays.
'Q. All right. A. And so he didn't give him any medicine. I asked him if he give him any medicine and he said 'No.'
'The Court: That would be cross examination anyway, before the jury wouldn't it?
'Mr. McMahon: If it please the Court, the point I am making is that-my objection might go to the weight rather than the admissibility.
'Mr. McMahon: If he told her two or three days before he saw Doctor Strole it wouldn't be res gestae; it would be too remote.
'The Court: I am just going by what she said there.
'Mr. MaMahon: I was trying to find the point in the deposition where she testified it was two or three dyas before.
'The Court: That would be a subject for cross examination.
'The Court: Bring the jury in.'
Whereupon the jury was returned to the jury box and under the direction of counsel for appellee, the witness testified as follows:
At the conclusion of the direct examination a Mrs. Hicks by counsel for appellee, counsel for appellant cross examined the witness as follows:
The witness was then excused and counsel for appellee advised the court that he had one other witness to...
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