Texas Indemnity Ins. Co. v. Preslar

• Decision Date: 24 June 1927
• Docket Number: (No. 291.)
• Citation: 298 S.W. 666
• Parties: TEXAS INDEMNITY INS. CO. v. PRESLAR et al.
• Court: Texas Court of Appeals

Page 666

298 S.W. 666

TEXAS INDEMNITY INS. CO. v. PRESLAR et al.

(No. 291.)

Court of Civil Appeals of Texas. Eastland.

June 24, 1927.

Rehearing Denied October 14, 1927.

Appeal from District Court, Eastland County.

Suit by Mrs. Cora Preslar and others against the Texas Indemnity Insurance Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Conner & McRae, of Eastland, for appellant.

Grisham Bros., of Eastland, and Davis, Johnson & Carter, of Dallas, for appellees.

PANNILL, C. J.

Mrs. Cora Preslar for herself and in behalf of her minor children, and joined by her married daughter, Mrs. Wright, and her husband brought this suit to set aside the decision of the Industrial Accident Board denying compensation for the death of Sanford Preslar, husband and father of the appellees named, and to recover such compensation from the appellant, compensation insurer for the Magnolia Petroleum Company. The allegations are that the deceased, Sanford Preslar, while working for the Magnolia Petroleum Company on August 28, 1924, engaged in pulling tubing, was exposed to the direct heat of the sun and on a very hot, clear day suffered an injury caused by heat prostration, resulting in his death; that the work in which deceased was engaged was very arduous; that, at the place where he was at work, the radiation and reflection of such heat was increased by iron pipes, machinery, metal, and other structures, which materially increased the hazard to which the deceased was subjected on account of such excessive heat to a greater degree than ordinarily applies to the general public; and that the injury and death of the deceased resulted proximately from such exposure and work under the conditions named. Further allegations were made, showing a right of recovery in the appellees, and a compliance with the Employer's Liability Act with reference to filing the claim, and a proper appeal from the judgment of the Industrial Accident Board denying appellees an award.

The cause was submitted upon special issues, which, with the answers of the jury thereto, established the following:

That Sanford Preslar suffered an injury while working for said company, to wit overheat, resulting in damage to his physical structure, causing his death; that the injury originated in and was connected with his employment, and was occasioned while said Preslar was engaged in the performance of his duties; that his death was neither directly nor proximately caused by the conditions of the derrick in which he was working at the time of his death; that his death was not caused by the use of ice water.

Upon the return of the verdict as noted, appellees moved for judgment, which motion was granted by the court and judgment rendered in favor of appellees, from which this appeal is prosecuted.

The points raised by appellant and which are considered material are (1) that no judgment could be lawfully rendered for the appellees on the verdict of the jury on account of the finding by the jury that the condition of the derrick in which the deceased was at work was not the proximate cause of his injury; (2) that the uncontradicted evidence was that the death of the deceased resulted from an act of God, and not compensable under our Employer's Liability Act; (3) that the evidence is insufficient to sustain a finding of the jury that Sanford Preslar died of overheat or heat prostration; (4) that there was error in the admission of the testimony of appellees' witness, Dr. Payne, in answer to a hypothetical question propounded him by appellees. These propositions will be discussed in more or less detail in disposing of the appeal.

It is provided in article 8309, R. S. 1925:

"The term `injury sustained in the course of employment,' as used in this law, shall not include:

"1. An injury caused by the act of God, unless the employee is at the time engaged in the performance of duties that subject him to a greater hazard from the act of God responsible for the injury than ordinarily applies to the general public."

This statute adopts the rule announced by a majority of the cases dealing with the construction of the Employer's Liability Act, as shown by the annotations in 13 A. L. R. 974, 16 A. L. R. 1038, 25 A. L. R. 146, and 40 A. L. R. 400, and as announced by our own Supreme Court in the case of Cassell et al. v. United States Fidelity & Guaranty Co., 115 Tex. 371, 283 S. W. 127, 46 A. L. R. 1137. The construction of this statute has been applied in but one case called to our attention, and that is the case of United States Fidelity & Guaranty Company v. Rochester (Tex. Civ. App). 281 S. W. 306. This decision was affirmed by the Supreme Court by memorandum opinion in 115 Tex. 404, 283 S. W. 135, on the ground that the decision is correct under the rules announced in the Cassell Case.

In Cassell v. U. S. Fidelity & Guaranty Co., the statement is made:

"In short, the accepted test which the English courts have tried to follow seems to have been, Did the injury occur from exceptional exposure to danger incurred through performance of the employee's duty? * * * Our statutes, in requiring that an injury in order to be compensable, must be one other than those specifically enumerated and one `having to do with and originating in the work,' have in effect adopted the requirement of the English and of most American acts that the injury `arise out of the employment.'"

In applying the rule announced it seems to be quite generally held that an injury, to be compensable, must be proximately caused by the employment. Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320, L. R. A. 1916E, 586, 587; Joliet v. Commission, 291 Ill. 555, 126 N. E. 618; McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Dougherty's Case, 238 Mass. 456, 131 N. E. 167, 16 A. L. R. 1039; Texas, etc., Co. v. Jimenez (Tex. Civ. App.) 267 S. W. 752.

In Lewis' Case, 178 Wis. 449, 190 N. W. 101, 25 A. L. R. 139, it is said that if the exposure to sunstroke at the time and place of the injury was not different substantially from that of other out of door work, no award is allowed. See, also, Townsend, etc., Co. v. Taggart, 81 Ind. App. 610, 144 N. E. 556; Skelley Oil Co. v. Commission, 91 Okl. 194, 216 P. 933.

In Dougherty's Case, 238 Mass. 456, 131 N. E. 167, 16 A. L. R. 1036, it is said:

"If the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises `out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment."

In McNicol's Case, supra, it is said:

"It (the injury) `arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. * * * The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

It would seem from a reading of the cases dealing with injuries caused by the elements that the recovery must be predicated upon a causal connection between the hazard and the employment, and this is proximate cause. Proximate cause is not restricted to the sole cause, nor need it be the cause nearest in point of time to the accident, but it must be a contributing cause without which the injury would not have occurred. Pennsylvania Co. v. Congdon, 134 Ind. 226, 33 N. E. 795, 39 Am. St. Rep. 251. It seems that it is not necessary for the term "proximate cause," as applied to compensation cases, to include a further element of the injury being within the contemplation of the master, or such as should have reasonably been foreseen as shown in the quotation made above and as held by our own courts in the case of Travelers' Ins. Co. v. Smith (Tex. Civ. App.) 266 S. W. 574, and Georgia Casualty Co. v. Little (Tex. Civ. App.) 281 S. W. 1092. The conclusion is inescapable that the findings by the jury noted above, that the conditions of the derrick were not the proximate cause of the injury suffered by the deceased, negative the necessary predicate for recovery by the appellees, to wit, that the hazard of sunstroke or heat prostration was materially increased by the conditions under which the deceased was working, and not applicable to the public generally.

Appellees plausibly urge that under our Compensation Law the question of proximate cause is no longer a necessary element for a recovery, and base this insistence upon Travelers' Insurance Company v. Smith and Georgia Casualty Company v. Little, cited above. These cases hold that it is not necessary for the consequences of the injury to be the natural and probable result thereof, as is required by the doctrine of proximate cause as generally applied, and this is all they do hold.

Appellees also rely on Insurance Co. v. Moore (Tex. Civ. App.) 279 S. W. 516, and Tex., etc., Co. v. Jimenez, cited above, as supporting their contention, but these decisions rather support appellant, in that there was a finding in each case that the circumstances surrounding the employee and arising out of his employment were the proximate cause of the injury. As will be noted, the court did not submit the issue to the jury in the terms of the statute, but followed the pleading of the appellees. The allegations set out above in pertinent terms aver...