Texas Employers Ins. Ass'n v. Watkins, 13988.

• Decision Date: 24 November 1939
• Docket Number: No. 13988.,13988.
• Citation: 135 S.W.2d 296
• Parties: TEXAS EMPLOYERS INS. ASS'N v. WATKINS et al.
• Court: Texas Court of Appeals

135 S.W.2d 296

TEXAS EMPLOYERS INS. ASS'N v. WATKINS et al.

No. 13988.

Court of Civil Appeals of Texas. Fort Worth.

November 24, 1939.

Rehearing Denied January 12, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wichita County; Irvin J. Vogel, Judge.

Suit under the Workmen's Compensation Act by Mrs. Nellie Watkins and others, claimants, opposed by the Texas Employers Insurance Association, insurance carrier, and others, to set aside an award of the Industrial Accident Board. From a judgment for the claimants, defendants appeal.

Reversed and remanded.

T. R. Boone, E. T. Duff, and Kearby Peery, all of Wichita Falls, for appellant.

Napier & Napier, of Wichita Falls, for appellees.

SPEER, Justice.

This is a Workmen's Compensation case, and the rights of the parties are controlled by the provisions of Article 8306 et seq., R.C.S., and Vernon's Texas Civil Statutes.

The suit was instituted by Mrs. Nellie Watkins and her children, as the surviving dependents of F. J. Watkins, deceased against Texas Employers Insurance Association, as compensation insurance carrier for the employers, A. T. Wolf and L. V. Hull, and that if it should be determined that deceased was an employee of Wolf only, then that the policy was intended by all parties to cover the employee, Watkins.

It appears that F. J. Watkins was the deceased husband of Mrs. Nellie Watkins, and the father of the other plaintiffs; F. J. Watkins had been employed as a pumper on an oil lease owned and operated by the named employers for about six years prior to May, 1933, when he received an accidental injury to his head, neck and back, while in the course of his employment. Allegations were that shortly after receiving the injury, and as a direct result thereof, Watkins developed tuberculosis, from which he suffered continuously until he died, on November 16, 1937; his average weekly wage is alleged to have been $12. Plaintiffs sought recovery for 360 weeks' compensation. Under the necessary allegations, they prayed for a lump sum settlement.

The insurance carrier, to which we shall refer as defendant, answered by general denial and by special pleas, among which was one of res judicata, the nature of which plea and the facts developed thereunder will have our attention later in this discussion.

The cause was tried to a jury on special issues. The court explained in his charge the meanings of "injury" and "personal injuries", "injury sustained in the course of employment", "accident" and "accidental", "employee" and "producing cause", and complaint is made only of the latter, which we quote: "Instruction E. You are instructed that by the term `producing cause', as used in this charge, is meant an exciting or contributing cause, which together with another cause or causes, produces a death, and but for which the death would not have resulted."

Under these instructions the verdict of the jury, as reflected by answers to the special issues, was: (1) Watkins sustained an injury on May 15, 1933; (2) such injury was accidental; (3) it was sustained in the course of his employment; (4) the injury so sustained was the producing cause of Watkins' death; (5) that manifest hardship and injustice would result to plaintiffs unless compensation was paid in a lump sum; (6) deceased's death was not solely the result of disease; (7) that his death was not solely the result of tuberculosis, and (8) it was the intention of the association that the insurance carried by it would inure to the benefit of F. J. Watkins.

On the verdict judgment was entered in favor of the surviving wife, in a lump sum, for $1,126.51 and in favor of the minor children for $181.69, and an additional amount of $3.60 per week for 311 weeks. The aggregate amount for which judgment was rendered was based on a $12 average weekly wage rate for 360 weeks, beginning with the date of the death of F. J. Watkins. Certain of the plaintiffs were found to be more than twenty-one years of age, not dependent, and were denied recovery. Provisions were made in the judgment for the statutory attorney's fees.

Defendant's motion for new trial being overruled, it has perfected this appeal under adequate assignments of error.

The first proposition is to the effect that since such accidental injuries as were received by deceased occurred on May 15, 1933, and he having died on November 16 1937, from tuberculosis, there was no testimony of probative force to support a jury finding that the accidental injury was the procuring cause of his death.

We think there is enough evidence in the record, which, if believed by the jury, would constitute more than a suspicion or surmise that the accident contributed to or aggravated a prior tubercular condition, or disease, with which the employee was suffering at the time of the accident.

Under Article 8309, R.C.S., subdivision five of Section 1, it is provided that, "The terms `injury' or `personal injury' shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom." The foregoing definition was included in the court's charge.

Mrs. Watkins testified that her husband received the injury on about May 15, 1933; she saw him sitting at the power plant with his head on his arms and went to him and found him apparently suffering from an injury; she took him home and sent for the doctor; he was complaining of his back, neck and chest; he said he was suffering pain in these parts; he complained most of his back; when the doctor came he was examined in the presence of witness, and she saw bruises on his back and chest. Deceased spit up blood for a few days after he was injured, she did not remember exactly how many days; he remained in bed several weeks and lost weight and began running a temperature in the summer; the next spring he began to have spells with his lungs and coughed up considerable blood; he remained in bed and would get up for short times and lie down again; he had those spells with his lungs and spit up blood frequently after that first summer; he grew weaker all the time until he died, on November 16, 1937. On cross examination Mrs. Watkins said she had previously testified in a case wherein her husband was suing for compensation but had not mentioned the fact that her husband had spit up blood; she said she was not asked about it and that she did not testify about it.

Dr. Parnell testified that he examined Watkins in December, after he claimed to have been injured in May; made X-ray pictures of his spine and found that he had a dislocated vertebra and a left inguinal hernia; he was complaining of his chest; he made no picture of his chest, because the patient did not want it done until he could pay for it; a diagnosis was made by witness and it was found that Watkins had tuberculosis and witness so advised him at the time. Witness said he found tuberculosis in the chest and that Watkins died of pulmonary tuberculosis. Counsel for plaintiffs propounded a hypothetical question to the witness, embracing the things testified to by Mrs. Watkins, and asked if those were the symptoms of tuberculosis, and the doctor said, "Yes sir, that is a picture of tuberculosis". Based on the question and a description of the injury received the witness was asked to "Tell the jury what effect the injury (to Watkins) had on his death." Among other things, witness said, "Well, of course it lowered his vitality. He evidently had a tubercular infection in his chest or in his system somewhere and the lowering of a man's vitality, or the damage to a chest which would cause him to spit up blood would very likely cause a hemorrhage into some part of the lung which would further aggravate it." An injury to the chest which causes a man to spit up blood would indicate that he had a damage somewhere in the lungs or bronchi. It indicates a rupture of a blood vessel in the lungs or bronchi, and the bronchi go all through the lungs; Watkins evidently had some degree of tuberculosis years before that (when he received the injury), a little while before anyway, at least he had the germ in his body.

It is well settled by many decisions in this State that even though an employee is afflicted with disease prior to receiving a compensable injury which aggravates the pre-existing disease, resulting in death or incapacity, the employee will not be denied recovery. Millers' Indemnity Underwriters v. Schrieber, Tex.Civ.App., 240 S.W. 963, writ refused; Texas Emp. Ins. Ass'n v. Jimenez, Tex.Civ.App., 267 S.W. 752, writ dismissed; Texas Emp. Ins. Ass'n v. Parr, Tex.Com.App., 30 S.W.2d 305; Texas Emp. Ins. Ass'n v. Ford, Tex.Civ.App., 93 S.W.2d 227, writ dismissed; Travelers Ins. Co. v. Johnson, Tex.Civ.App., 84 S.W.2d 354, writ dismissed; Traders & Gen. Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391.

The testimony in the instant case was conflicting, and the controversial issues were for determination by the jury. In this case they were resolved against the contention of defendant, and it is not our prerogative to set that verdict aside, if there is any substantial testimony to support it. 3 Tex.Jur., page 1102, sect. 771; 41 Tex.Jur., page 1246, sect. 378; Oats v. Dublin Nat. Bank, 127 Tex. 2, 90 S.W.2d 824; Choate v. San Antonio & A. P. Ry. Co., 91 Tex. 406, 44 S.W. 69; Post v. State, 106 Tex. 500, 171 S.W. 707; Sproles Motor Freight Lines v. Juge, Tex.Civ.App., 123 S.W.2d 919, writ dismissed—correct judgment; Worth Finance Co. v. Hillard Motor Co., Tex.Civ.App., 131 S.W.2d 416; Texas Cotton Growers' Ass'n v. McGuffey, Tex. Civ.App., 131 S.W.2d 771, writ dismissed, and cases there cited. In the last cited case, the court used this language, 131 S.W. 2d at page 774: "It appears to be well settled that a verdict will not be disturbed because a jury may have erred, but that in order to justify this court in setting aside such a verdict, it is not sufficient that it does not appear clearly to be right; it must...