Texas Employers' Ins. Ass'n v. Birdwell

• Citation: 39 S.W.2d 159
• Decision Date: 22 May 1931
• Docket Number: No. 869.,869.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. BIRDWELL et al.
• Court: Court of Appeals of Texas

39 S.W.2d 159

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

No. 869.

Court of Civil Appeals of Texas. Eastland.

May 22, 1931.

Rehearing Denied June 12, 1931.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Suit by the Texas Employers' Insurance Association against Mrs. Ella Birdwell and another to set aside an award of the Industrial Accident Board, wherein defendants filed a cross-action. Judgment for defendants, and plaintiff appeals.

Affirmed.

Harry P. Lawther, Shelby S. Cox, Wm. M. Cramer, James P. Swift, and Frank F. Taylor, all of Dallas, and E. V. Hardwick, of Stamford, for appellant.

J. F. Lindsey, of Anson, and Caldwell, Gillen, Francis & Gallagher, of Dallas, for appellees.

HICKMAN, C. J.

This suit was instituted in the court below by appellant against appellees, Mrs. Ella Birdwell and Pauline Birdwell, a minor, to set aside an award of the Industrial Accident Board. The appellees filed their cross-action, alleging that they were respectively the widow and minor child of T. C. Birdwell, deceased; that on or about April 22, 1929, while engaged in the course of his employment with A. C. Fox, appellant's subscriber, said T. C. Birdwell sustained certain personal injuries, from which he died on January 25, 1930; that they were the sole exclusive beneficiaries of said deceased; and appellee, Mrs. Ella Birdwell, for herself and as next friend of the said Pauline Birdwell, prayed for judgment for compensation for 360 weeks in one lump sum. A jury was demanded, and the case submitted on special issues. The answers of the jury to each and all of the special issues being favorable to appellees, judgment was rendered for them accordingly, from which judgment this appeal is prosecuted.

The first question presented is that the court should have given a peremptory instruction in favor of appellant, because the appellees alleged that they were the sole exclusive beneficiaries of T. C. Birdwell, and did not make proof of that fact. The facts developed upon the trial disclose that no children were born to Mr. and Mrs. Birdwell, but that each had children by former marriages. Only one of Mr. Birdwell's children was a minor. She was a party to this suit. Regarding the other children of Mr. Birdwell, Mrs. Birdwell testified as follows:

"Mr. Birdwell did not leave any other minor children other than Miss Pauline here. He left some other children. They are: Mrs. E. M. Spraberry, who lives here in Anson; Mrs. Bonnie Brown, of Odessa, Texas; Mrs. Junie Mayo, of Pampa, Texas; Weldon Birdwell, of Odessa; Cone Birdwell, of Odessa. There were no others but Pauline, and she is a minor child. Mr. Spraberry's initials are E. M. Mrs. Bonnie Brown's husband's initials are T. P., I believe. I don't know the initials of Mrs. Mayo's husband, but his given name is Lee.

"All of those people that I have named— five of them—were sons and daughters of Mr. Birdwell."

There is no suggestion from any evidence in the record that any of these adults were dependent upon the deceased, and the facts with reference to the income of deceased would indicate that he had no financial ability to render assistance to any of them. These facts and circumstances constitute some evidence that appellees were the sole beneficiaries. None of the adult children resided at the same address where the deceased and appellees lived. All of the adult daughters were shown to be married and living with their husbands, and there is no suggestion that any of them were dependent upon their father. In the administration of justice, it is often necessary to indulge in presumptions. Facts which usually follow given facts may be presumed, in the absence of evidence to the contrary, to be true. There is no legal obligation resting upon a parent to support his adult children, and his obligation to support a daughter ceases upon her marriage.

An adult person is presumed to be in possession of normal faculties of mind and body, and, as said in Hines, Director General of Railroads, v. Walker (Tex. Civ. App.) 225 S. W. 837, 839 (error refused), "* * * in the absence of proof it cannot be presumed that he will continue such support." Had these adult children been parties to this suit and had offered no evidence of dependence further than the facts disclosed in this record, then the evidence would have fallen short of making any case in their favor, for the presumption that their father did not support them could be overcome only by positive proof to the contrary. That presumption operates to afford some evidence in support of appellees' allegation, and the contention in this respect is overruled. Hines v. Walker, supra; St. L., A. & T. Ry. Co. v. Johnston, 78 Tex. 536, 15 S. W. 104, 106; T. & N. O. Ry. Co. v. Mills (Tex. Civ. App.) 143 S. W. 690; Baker v. Adkins (Tex. Civ. App.) 278 S. W. 272.

We do not wish to be understood as indicating that appellant would have been entitled to a peremptory instruction had the evidence disclosed that one or more of these adults were dependents. That question is not before us.

Another group of assignments and propositions present for review the ruling of the trial court on the admissibility of certain evidence. Appellees' counsel propounded to a medical expert a hypothetical case, concluding with this interrogatory: "Remembering those facts just stated in the hypothetical question, remembering those and assuming them to be true, could the injury sustained on April 22nd, 1929, injuring the small of the back, could or could not that be a contributing cause of the man's death on January 25th, 1930?"

The answer to this interrogatory was as follows: "I think the injuries sustained by that man on April 22nd, 1929, could be a contributing cause of that man's death on January 25th, 1930."

Practically the same interrogatory was propounded to another expert witness and a similar answer returned. Another question propounded concluded with this interrogatory: "Assuming these facts to be true for the purpose of your answer, in your opinion, could or could not the injuries, if any, received on April 22nd, 1929, be a precipitating factor in causing his death?"

The only objections made below to this evidence which are presented in this court were that the questions and answers were immaterial and prejudicial, and because, under the Workmen's Compensation Law (Vernon's Ann. Civ. St. arts. 8306-8309), the injuries must have caused the death. An employee under our Workmen's Compensation Law is not required...