Texas Employers' Ins. Ass'n v. Morgan

• Decision Date: 06 April 1945
• Docket Number: No. 2508.,2508.
• Citation: 187 S.W.2d 603
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. MORGAN et al.
• Court: Texas Court of Appeals

187 S.W.2d 603

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

No. 2508.

Court of Civil Appeals of Texas. Eastland.

April 6, 1945.

Rehearing Denied May 11, 1945.

Appeal from District Court, Howard County; Cecil C. Collings, Judge.

Suit under the Workmen's Compensation Act by Hattie Morgan and others to set aside an award of the Industrial Accident Board in favor of Texas Employers' Insurance Association on claim for compensation for the death of Steve Morgan, who was the husband of named plaintiff and the father of the other plaintiffs. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded for a new trial.

Whitaker, Turpin, Kerr, Smith & Brooks, of Midland, and James Little, of Big Spring, for appellant.

Smith & Smith, of Anson, and Thomas & Thomas of Big Spring, for appellees.

LONG, Justice.

The appellees, Mrs. Hattie Morgan, surviving wife of Steve Morgan deceased, Billie Morgan, Winnell Morgan, Clinton Morgan, and Dianne Morgan, surviving minor children of the said Steve Morgan, deceased, instituted this suit against appellant, Texas Employers' Insurance Association, under the Workmen's Compensation Act, Vernon's Ann.Civ.St. art. 8306 et seq. The case was tried before the court with the aid of a jury. The jury, in response to special issues, found that Steve Morgan sustained an accidental personal injury on the 11th day of October, 1942, while in the course of his employment for Black, Sivalls & Bryson, Inc. That such injury was a producing cause of the death of Steve Morgan, and that it would work a manifest hardship and injustice to the plaintiffs if the compensation was paid in weekly payments, instead of a lump sum settlement. That Steve Morgan had not worked for Black, Sivalls & Bryson, Inc., substantially the whole of the year immediately preceding the 11th of October, 1942. That there were other employees doing the same or similar work as Steve Morgan in the same or a neighboring community who had been employed for substantially the whole of the year, and that their weekly wage was $52.15. The jury fixed the average weekly wage of Steve Morgan at $52.15. The jury further found the death of Steve Morgan was not caused solely by disease independent of the accidental injury. Based upon the above findings, a judgment was entered in favor of the appellees against the appellant for the lump sum of $6,481.36. The appellant seasonably filed its motion and amended motion for a new trial, and upon the overruling of the same gave notice of appeal to this court.

This appeal is predicated upon 8 points. The 6th point, which we will discuss first, complains of the refusal of the court to instruct a verdict in favor of the appellant for the reason, as contended by appellant, that there was not sufficient evidence of probative value to show that the accidental injury of October 11, 1942, sustained by Steve Morgan was a producing cause of his death, or caused or contributed to same. In passing upon this question, we must consider the evidence in its most favorable light for the appellees, disregarding all conflicts and contradictions and allowing every reasonable inference that may be drawn from it in support of their contention. Williams v. Lumbermen's Reciprocal Ass'n., Tex.Civ.App., 18 S.W.2d 1093.

The evidence discloses that Steve Morgan was working for Black, Sivalls & Bryson, Inc., building an oil tank on an oil lease in Howard County on October 11, 1942. That working with him on said tank were M. M. Lancaster and L. D. McSpaden. Lancaster was the foreman on the job, and Steve Morgan and McSpaden were helpers. Morgan and McSpaden were standing on a scaffold that was approximately 8 to 12 feet from the ground suspended on the side of the tank. The bracket slipped and allowed the board on which Morgan and McSpaden were standing to fall. They both fell to the ground and Morgan fell astraddle of the board. Morgan immediately complained of being hurt. McSpaden and Lancaster took him to a hospital in Big Spring, where he received first aid treatment. He was then taken to Headlee Hospital at Odessa. He returned to work in a day or two and worked approximately two weeks. According to the other employees that worked with him after the fall, he complained of being ill and acted like he did not feel well.

From the evidence there is no question but what the deceased received an accidental injury while in the course of his employment for Black, Sivalls & Bryson. The serious question and the one that has given us more concern is whether such accidental injury was shown to be a producing cause of his death. There is considerable medical testimony on the question in the record. We will not attempt to go into detail and set out the testimony of the different doctors and other witnesses who testified in the case. The evidence shows that prior to the time of the accident the deceased was a strong, healthy man and for many years had been engaged in performing hard manual labor, and that he had never had any serious illness. He worked for about two weeks after the accident and then went to his home in Rule, Texas. From the testimony of his wife, it is shown that when he arrived home his stomach was so badly swollen he could only button the two bottom buttons of his trousers and could not fasten his belt, although he was wearing the same clothing he was accustomed to wearing. According to her testimony, he seemed to be swollen all over. His legs were bruised. The insides of his legs up near his straddle were black and blue. After he returned home he did no work and stayed in bed most of the time for about two weeks. He vomited a great deal. He was carried to the Stamford hospital on or about the first of November, where he remained until the first of January, 1943, when he was carried to the Baylor Hospital in Dallas. He then went to the home of his wife's brother near Dallas, where he stayed about two weeks. From there he was carried to the Methodist Hospital in Dallas, where he died on the 14th of February, 1943. The evidence further shows that the deceased's condition grew steadily worse from the time he got home from the oil fields at Odessa until his death. There is evidence that Steve Morgan died as a result of leukemia. However, the evidence on this point is not conclusive. There is some evidence that he died of septicaemia or peritonitis. Leukemia is a disease of the blood. From the testimony of the doctors it is revealed that the cause of leukemia is unknown, and that it is always fatal. It is further shown in the record that a fall, such as sustained by the deceased, would likely injury and bruise the spleen and other vital organs of the body, and that such an injury would be calculated to cause septicaemia or peritonitis. The spleen has to do with the proper producing and mixing of the blood. Some of the doctors who testified in the case, being of the opinion that the deceased died from leukemia, could not say that there was any connection between the fall and the death of Steve Morgan for the reason that the cause of leukemia is unknown. Other doctors testified that in their opinion there was a connection between the fall and his death. We believe that...