Travelers Ins. Co. v. Rowand
| Decision Date | 07 July 1952 |
| Docket Number | No. 13856.,13856. |
| Citation | 197 F.2d 283 |
| Parties | TRAVELERS INS. CO. v. ROWAND. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert S. Vance, Texarkana, Tex., for appellant.
Armond G. Schwartz, Hallettsville, Tex., Joe H. Tonahill, Jasper, Tex., for appellee.
Before HOLMES, BORAH, and RIVES, Circuit Judges.
This appeal is from a judgment against appellant, in favor of appellee, rendered under the Workmen's Compensation Act of Texas, Vernon's Ann.Civ.St. art. 8306 et seq. Federal jurisdiction rests solely upon diversity of citizenship of the parties, and the requisite jurisdictional amount. The appellant admits that the appellee received injuries in Texas, on June 16, 1947, but claims that said injuries were of a partial character and temporary nature. The jury found that the appellee was totally and permanently disabled, and recommended a lump-sum payment, judgment being entered accordingly.
The appellant contends that the evidence is insufficient to support the verdict, because insufficient to establish a causal relationship between the alleged injury of June, 1947, and appellee's cancer. The crucial question here is whether traumatism may reasonably be regarded as a causative factor in cancer of the testicle; and, if so, whether the testimony in behalf of the appellee, including the expert opinions of medical witnesses, was sufficient to warrant a fair jury reasonably to infer and believe that said injury directly and proximately caused appellee's cancer of the testicle.
The appellant asks this court to take judicial knowledge of the fact that science is struggling desperately to determine the cause of cancer, and "that our school children of elementary grades are aware of the failure of science in this field"; but we cannot take judicial notice that to find a causal relationship between the cancer and the injuries of appellee would be indulging in speculation and conjecture. We do not judicially know this to be a fact. The circumstances of appellee's traumatic injury in the course of his employment were clearly proven; the medical history of his case, his operation, hospitalization, and the expert testimony of four doctors who attended him, were also before the jury. We are bound by the substantial evidence that was presented to the jury, to the extent that it is consistent with the verdict, the jury being the sole judge of the credibility of the witnesses and of the weight or value of their testimony.
Appellee was an electrician, and on June 16, 1947, was working for his employer as a lineman. While so engaged, his safety buckle became released, which caused him to be swung around far enough for his right arm to come in contact with a hot electric wire that carried between 6,900 and 11,000 volts of electricity, which passed through his body, burning his arm, leg, feet, back and forehead. The shock from this electric current was so great that he was rendered unconscious and was thrown astraddle of an iron pole, which injured his right testicle, the right side of his scrotum, and the inguinal area of his lower abdomen; as a natural result of which, within two or three days, his right testicle became swollen, his scrotum became bluish in color, and his condition so painful that he was forced to place a pillow between his legs to support that portion of his body in trying to sleep at night. This area remained swollen for several months, during which time he wore a suspensory. Although in pain, the employee went back to work, but his earning power gradually decreased, and he finally became afraid to work in close proximity to high-powered electric wires.
On May 29, 1950, the appellee underwent a surgical operation for malignant teratoma (cancer) of his right testicle, at which time an incision of the right inguinal area and scrotum was made and two small malignant tumors removed from his testicle, one from the upper pole and one from the lower pole. Following this diagnotic operation, the wound was closed; and on June 1, 1950, the appellee underwent further surgery, at which time the right malignant testicle, together with the cord, was removed and a lymph nodal dissection of the inguinal area carried out to the level of the diaphragm, resulting in a condition of metastasis of his left lung at the helium. From all of which, beginning with the electric shock, the appellee claims to have suffered total and permanent incapacity to work. Prior to said injury, the plaintiff was an able-bodied man, well and strong, and fully able to perform all the duties of his employment.
The question in this case that has given us the most concern is as to the sufficiency of the evidence to warrant a finding of total and permanent disability due to appellee's physical injury; not whether he is so disabled, but whether such disability is the result of traumatism or disease. Four doctors testified, three introduced as witnesses for the plaintiff and one for the defendant, all of whom were qualified as experts on the subject; but only one of whom expressed positively the opinion that the appellee's teratoma was caused by his traumatic injury. Another expressed his positive opinion to the contrary. The other two were of the opinion that the cause of cancer was unknown to medical science at the time of their testimony; but one of the latter two, Dr. Todd, testified that, while the doctors did not know the processes that caused the disease, the disorderly growth which we call cancer has been found in association with such injuries as burns, scars, unhealed wounds, and forms of skin lesions. In response to a properly worded hypothetical question, which was not objected to, Dr. Todd was asked whether such a history as the plaintiff's was calculated to cause this tumor which he found in the patient. His reply was as follows:
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