Travelers Ins. Co. v. Williams

• Decision Date: 23 March 1964
• Docket Number: No. 7339,7339
• Citation: 378 S.W.2d 110
• Parties: TRAVELERS INSURANCE COMPANY, Appellant, v. Myrtle Pauline WILLIAMS et al., Appellees.
• Court: Texas Court of Appeals

Page 110

378 S.W.2d 110

TRAVELERS INSURANCE COMPANY, Appellant, v. Myrtle Pauline WILLIAMS et al., Appellees.

No. 7339.

Court of Civil Appeals of Texas, Amarillo.

March 23, 1964.

Rehearing Denied April 20, 1964.

Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.

Kolander, Moser & Templeton, Amarillo, for appellees.

DENTON, Chief Justice.

This is a workmen's compensation case. The Travelers Insurance Company has appealed from a judgment based on a jury verdict awarding Myrtle Pauline Williams and Ronald D. Williams, the widow and minor child of Obie Lee Williams, deceased, a recovery of lump sum death benefits because of the death of Obie Lee Williams. Article 8306, Section 8, Vernon's Ann.Civ.St.Tex.

Obie Lee Williams was a forklift operator employed at the Pantex Ordinance Plant in Carson County, Texas. Williams operated this forklift in loading and unloading merchandise and material from trucks at his employer's plant. While in the process of operating this equipment on October 20, 1961, Williams was stung by a wasp on his right ankle. It is undisputed this incident occurred at approximately 4:00 o'clock p. m. of the above date, and he died the following day at 11:35 o'clock a. m. An autopsy report gave the cause of death as an acute coronary occlusion in a case of severe coronary arteriosclerosis. It is appellees' contention the deceased suffered anaphylactic shock from the wasp sting which was the producing cause of the coronary occlusion, the admitted cause of the deceased's death.

Appellant's first four points, briefed together, assert that as a matter of law appellees failed to establish an accidental injury sustained in the course of his employment. This general contention is based on the alleged failure of appellees to sustain the burden to show deceased sustained an injury arising out of or originating in the course of his employment; that the alleged injury sustained was an act of God; the injury being an act of God, required an affirmative finding that the deceased was subject to a greater hazard from such act of God than that ordinarily applied to the general public. Appellant's last three points, also briefed together, challenge the sufficiency of the evidence to show a causal connection between the wasp sting sustained by the deceased on October 20, 1961, and his death the following day as the result of a coronary occlusion. Although appellant's seventh point of error contends there was 'insufficient evidence' to support the jury finding and that such finding is 'against the great weight and overwhelming preponderance of the evidence' the point is based on the action of the trial court in refusing to grant appellant's motion for judgment no obstante veredicto. Such an attack necessarily constitutes a 'no evidence' point as opposed to an 'insufficient evidence' point. Rule 301, Texas Rules of Civil Procedure. We must therefore disregard the seventh point as its legal effect is identical to appellant's sixth point, namely: there is no evidence to support the jury's finding that the deceased died as a natural result of an injury sustained by him on or about October 20, 1961. As all points are 'no evidence' points it is our duty to view the evidence and the reasonable inferences therefrom most favorably in support of the jury's findings. To sustain a judgment non obstante veredicto the reviewing court must determine that there is no evidence of probative force upon which the jury could have made its findings. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682.

The trial court correctly charged the jury in its definition of 'injury sustained in the course of employment'. The court followed the applicable statute by defining the above phrase as 'such injury having to do with and originating in the work, business or trade of the employer sustained by an employee while engaged in or about the furtherance of the affairs or business of the employer.' Article 8309, Section 1, V.A.T.S. We agree with appellant that this statute not only requires proof that the injury occurred while the claimant was engaged in or about the furtherance of his employer's business, but he is also required to show the injury was of a kind and character that had to do with and originated in the employer's work, trade or business. Smith v. Texas Employers Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192; Texas General Indemnity Co. v. Bottom, Tex., 365 S.W.2d 350.

We will first consider appellant's contention the wasp sting was an act of God, and as such, was precluded as a matter of law from being considered a compensable injury. If the wasp sting can be said to be an act of God, then in order to effect recovery it is incumbent upon deceased's beneficiaries to show deceased was 'engaged in the performance of duties that subject him to greater hazard from an act of God responsible for the injury than ordinarily applies to the general public.' Article 8309, Section 1, V.A.T.S. We are of the opinion, and so hold, a wasp sting is not an act of God. Although an act of God is not defined in the workmen's compensation act, the phrase has been considered by our courts. Even though it is not susceptible of an accurate and comprehensive definition, the courts use such language as '[t]he act must be one occasioned exclusively by the violence of nature', and such injury 'is due directly and exclusively to natural causes, without human intervention, where no amount of foresight or care which could have been reasonably required * * * could have prevented the injury.' Travelers Ins. Co. v. Randall (5 Cir.), 264 F.2d 1; Texas Employers Ins. Ass'n. v. Moyers (Tex.Civ.App.), 69 S.W.2d 777, 779 (Writ Dismissed). The Beaumont Court of Civil Appeals had the identical question before it in Indemnity Ins. Co. of North America v. Garsee, 54 S.W.2d 817. Although the court did not discuss the question at length, it held that an insect bite was not an act of God, and that the trial court did not err in refusing to define the term to the jury. We reach the same conclusion. Being of the opinion the wasp bite was not an act of God, it was not error to refuse to submit an issue to the jury as to whether the deceased was exposed to a greater hazard in his employment than ordinarily applies to the general public.

The next question to be determined is whether or not Williams' injury was of such a kind and character that had to do with or originated in his employer's work or business. The deceased...