Texas Employers Ins. Ass'n v. Wright

• Decision Date: 14 June 1938
• Docket Number: No. 3286.,3286.
• Parties: TEXAS EMPLOYERS INS. ASS'N v. WRIGHT et al.
• Court: Texas Court of Appeals

Page 433

118 S.W.2d 433

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

No. 3286.

Court of Civil Appeals of Texas. Beaumont.

June 14, 1938.

Rehearing Denied June 22, 1938.

Appeal from District Court, Sabine County; F. P. Adams, Judge.

Suit by Wesley Wright and others against the Texas Employers Insurance Association to set aside an award of the Industrial Accident Board which denied compensation for injuries sustained by G. H. (George) Wright, the employee, who was employed by the Temple Lumber Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

R. E. Minton, of Lufkin, and Minton & Minton, of Hemphill, for appellant.

J. R. Beck and W. R. Cousins, both of Beaumont, and L. E. King, of Hemphill, for appellees.

O'QUINN, Justice.

This is a compensation case by appellees, the heirs of Sallie Wright, against appellant, Texas Employers Insurance Association, filed in the district court of Sabine County as an appeal from an adverse award of the Industrial Accident Board; appellant was the compensation insurance carrier; Temple Lumber Company the employer; G. H. (George) Wright the employee, who died the 20th day of March, 1934; Sallie Wright, the surviving widow of George Wright, died the 26th day of July, 1935— she and her deceased husband had no children; appellees are the heirs of Sallie Wright, deceased, and as such filed this claim before the Industrial Accident Board for compensation for the death of George Wright, and filed and prosecuted this appeal from the award of the Industrial Accident Board. On the verdict of the jury, finding the basic facts, judgment was entered in favor of appellees against appellant for compensation at the rate of $18.48 per week for 360 weeks, beginning the 20th day of March, 1934. From the judgment appellant has duly prosecuted its appeal to this court.

We quote appellant's first proposition advanced under the seventh assignment of error:

"This suit being by the heirs of Sallie Wright for a chose in action, filed within four years after her death, it was indispensable that plaintiffs should both allege and prove that there was no administration pending on her estate and that none was necessary."

We quote appellant's seventh assignment of error:

"The trial court erred in overruling defendant's motion for instructed verdict, because the plaintiffs wholly failed to discharge the burden of proof resting upon them to show continuing good cause existing at all times prior to the filing of claim with Industrial Accident Board on July 29th, 1935, for the failure of Sallie Wright to file a claim for compensation with the Industrial Accident Board during said period of time."

The proposition is not germane to the seventh assignment of error, nor to any other assignment of error brought forward by appellant in its brief. Under the following rule announced by 3 Tex.Jur. 887, the proposition is overruled:

"A germane proposition is one which is relevant to the assignment upon which it is based; a proposition is not germane if it deals with a different subject or raises a different question. * * *

"In considering propositions, an appellate court is confined to those based upon and germane to some assignment of error appearing in the record and brought forward in the brief."

See, also, Columbian Nat. Fire Ins. Co. v. Dixie Co-op. Mail Order House, Tex.Com. App., 276 S.W. 219.

Appellant asserts by its second proposition that appellees' petition was subject to a general demurrer "for failure to negative the four exceptions in the statutory definition of `injury sustained in the course of employment', of Article 8309, Paragraph 5, Subparagraph 4, Revised Statute of 1925"; appellant thus states the four exceptions:

"(1) by the act of God; (2) by the act of a third person intended to injure him because of reasons personal to him and not directed against him as an employee; or because of his employment; (3) was not received by him while in a state of intoxication; (4) nor by the employee's wilful intention and attempt to injure himself, or to unlawfully injure some other person."

We quote as follows from appellees' petition:

"Plaintiffs allege and say that heretofore on or about May 20, 1934, the said G. H. Wright was an employee of the Temple Lumber Company in Sabine County, Texas, and elsewhere in the capacity among other things as assistant woods foreman, and that it was his duty to make and assist in making surveys for tram-roads and in constructing, maintaining, and repairing tram-roads and lines of the said employer and to assist therein and in general to perform such tasks as might be assigned to him by the said Temple Lumber Company.

"That on or about the 17th day of March, A. D., 1934, said G. H. Wright was notified by his employer, its agents, servants, employees and representatives that a tram-road bridge was burning on the tram-road front of his said employer and was ordered to extinguish said fire and rebuild and repair said bridge; that said G. H. Wright immediately went to the said burning bridge on said day and date and assisted in the extinguishing of said fire, thereby strenuously exerting himself, became excited and straining himself, causing injuries to the body in general and especially the heart which caused or contributed to the cause of his death; that thereafter on or about the 18th and 19th days of March, A. D., 1934, said G. H. Wright worked and assisted in the repairment of said bridge working day and night on or about the 20th day of March, A. D., 1934 while continuant in the scope of his employment with the said Temple Lumber Company did survey a tram-road on the Temple Lumber Company's front thereby greatly exerting himself and subjecting his body and heart and other members of his body to great strain and fatigue, and that on said day and date said G. H. Wright died as a result of the extraordinary effort, strain, and fatigue as aforesaid.

"Plaintiffs say that on or about the 17th, 18th, 19th and 20th days of March, A. D., 1934, the said G. H. Wright was actually engaged in the scope of his employment with the said Temple Lumber Company and in the performance of his duties as its employee and worked for long hours under great strain and stress and excitement becoming fatigued and being subjected and exposed to the elements which on said days and dates were severe and that by reason of such, the said G. H. Wright suffered injury and harm to his body which caused or contributed to the cause of his death on or about the 20th day of March, A. D., 1934; that the said G. H. Wright suffered actual injuries while engaged in the course of his employment and the same was received in the usual course of his said employer's business and that said injuries were the cause or contributing cause of his death."

Appellees were entitled to all general intendments to be deduced from their petition; under this rule the petition, in the respects challenged, in the absence of special exceptions, was not subject to the general demurrer. The following authorities support appellees' petition: 45 Tex.Jur., page 803; Federal Underwriters Exchange v. Warren, Tex.Civ.App., 86 S.W.2d 824, writ dismissed; Southern Surety Company et al. v. Weaver et al., Tex.Com.App., 273 S.W. 838.

By assignments of error Nos. 5 and 6, appellant complains that certain hypothetical questions propounded by appellees to Dr. R. D. Cousins were without support in the evidence in the following respects:

"(1) There was no testimony in the record up to that time showing that Geo. H. Wright, while the burning bridge was being put out, walked up and down any railroad dump eight or nine feet high;

"(2) There had been no testimony introduced showing that Geo. H. Wright chopped with an axe on the heavy timbers of the bridge for two hours while the bridge was being put out;

"(3) There was no testimony to show that at all times during the two-hour period Geo. H. Wright was in a hot place with smoke and heat all around him;

"(4) There was no testimony offered by any witness showing that when Geo. H. Wright stopped about the middle of Runyan Hill in lighting a cigarette that he remarked that he was bellowsed like a mule from fighting fire on Saturday night."

The following summary of the evidence, taken from appellees' brief, sufficiently answers these assignments:

"As seen by the statement the witness, Bency E. Ener, testified that Mr. Wright got upon the railway dump, which was 8 feet above the level of the stream, and the witness R. E. Jacks testified that the bridge must have been 8 or 9 feet high. This testimony is sufficient to base the statement that G. H. Wright walked up and down a railway dump 8 or 9 feet high, since it naturally follows that a bridge 8 or 9 feet high will have a dump practically that high. The witness, Bency E. Ener, having testified that G. H. Wright he reckon, chopped for maybe two hours, chopping some heavy timbers in two. He further testified that it was hot where Mr. Wright was, that he was facing the heat and smoke. Appellees think his testimony sufficient to base the statement that G. H. Wright had finally got an axe and chopped for an hour or two and chopped heavy timber on the bridge in two, and at all times being in a hot place with heat and smoke all around him.

"The testimony of Paul Durham that G. H. Wright stated that bridge burning out he didn't get much rest as he ought to, he was like those old mules, he was bellowsed. That he played out, and further testified that bellowsed means wind-broke, was sufficient upon which to base the statement of hypothetical question that G. H. Wright remarked that he exhausted or bellowsed like a mule, from fighting fire on Saturday night."

In Decatur Cotton Seed Oil Co. v. Belew, Tex.Civ.App., 178 S.W. 607, the court said (page 614):

"All that is required in such cases is that the evidence is substantially embodied in the hypothetical question."

See, also, Trinity & B. V. Railway Co. v. McCune, Tex.Civ.App....