Traders & General Ins. Co. v. Kincaid

• Decision Date: 18 April 1938
• Docket Number: No. 4875.,4875.
• Citation: Traders & General Ins. Co. v. Kincaid, 116 S.W.2d 868 (Tex. App. 1938)
• Parties: TRADERS & GENERAL INS. CO. v. KINCAID et al.
• Court: Texas Court of Appeals

116 S.W.2d 868

TRADERS & GENERAL INS. CO. v. KINCAID et al.

No. 4875.

Court of Civil Appeals of Texas. Amarillo.

April 18, 1938.

Rehearing Denied May 16, 1938.

Appeal from District Court, Wichita County; Allan D. Montgomery, Judge.

Suit under the Workmen's Compensation Act by Elizabeth Kincaid, for herself and minor children, to set aside an award of the Industrial Accident Board in favor of Traders & General Insurance Company. From a judgment granting relief, defendant appeals.

Reversed and remanded.

Lightfoot, Robertson, Saunders & Gano, of Fort Worth, and T. R. Boone and Kearby Peery, both of Wichita Falls, for Traders & General Ins. Co. E. W. Napier, of Wichita Falls, and Berry, Warlick & Bunnenberg, of Vernon, for Elizabeth Kincaid et al.

FOLLEY, Justice.

On March 21, 1936, this court affirmed this case by a written opinion of that date. The plaintiff in error has filed a motion for rehearing and, upon careful consideration of the same, we are of the opinion that we were in error in some of our conclusions. The original opinion is withdrawn and the following opinion substituted.

This is a compensation case brought by Elizabeth Kincaid, surviving wife of Curtis Kincaid, deceased, for herself and minor children, against the Traders & General Insurance Company in the form of an appeal from the Industrial Accident Board. The parties shall carry their trial court designation.

The plaintiffs alleged that on or about May 9, 1935, Curtis Kincaid was employed as a laborer by Combs & Glade, who were general contractors and subscribers of the defendant insurance company. The deceased had been in such employment for about one month prior to May 9, 1935. On this day he went to work about 2 o'clock in the afternoon shoveling bulk cement out of a box car, and worked until about 5 p. m. Plaintiffs further alleged; and offered evidence tending to prove, that during such time the deceased inhaled an extraordinary amount of cement dust and suffered a heat stroke, both of which injuries contributed to his death. It was uncontroverted that the deceased contracted lobar pneumonia immediately after his injury and died one week later, May 16, 1935.

The defendant answered by general demurrer and general denial and further pleaded that the death of the deceased resulted solely from physical diseases and infections.

In submitting the case to the jury the plaintiffs abandoned their theory that inhaling cement dust had caused the death of the deceased, and only issues relative to heat stroke were submitted to the jury. The first of these issues, and the instruction given in connection therewith, form the basis of the chief complaint of the defendant. The issue in question was as follows: "Do you find from a preponderance of the evidence that the deceased, Curtis Kincaid, sustained a heat stroke, as that term is defined herein, on or about the 9th day of May, 1935?"

This issue was answered in the affirmative by the jury. To assist the jury in answering this issue the court gave the following instruction: "You are instructed that the term `heat stroke' as used in this charge shall be construed to mean damage or harm to the physical structure of the body and such diseases and infections as naturally result therefrom." (Italics ours.)

Other issues not material to our discussion were submitted and answered by the jury in favor of plaintiffs' recovery. Upon such verdict the court rendered judgment for the plaintiffs, from which judgment the defendant has appealed to this court.

The defendant, in several assignments, attacks the judgment of the trial court because of the definition of "heat stroke" as given by the court. The defendant asserts that such definition instructed the jury that "heat stroke" and "injury" are one and the same thing, that such definition does not exclude from the consideration of the jury injuries other than a heat stroke, and the finding of the jury, in the light of such definition, is not only deficient in sustaining plaintiffs' theory of a heat stroke but is just as conclusive that the deceased died from inhaling cement dust or from some other injury, even though the plaintiffs had elected to stand solely upon the theory of heat stroke.

After further consideration of the defendant's contention in this respect, we have reached the...