Wade v. Texas Emp. Ins. Ass'n

• Decision Date: 05 December 1951
• Docket Number: No. A-3112,A-3112
• Citation: 150 Tex. 557,244 S.W.2d 197
• Parties: WADE et al. v. TEXAS EMPLOYERS' INS. ASS'N.
• Court: Texas Supreme Court

Page 197

244 S.W.2d 197

150 Tex. 557

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

No. A-3112.

Supreme Court of Texas.

Dec. 5, 1951.

Helm & Jones, John L. Hill and W. J. Kronzer, Jr., all of Houston, Jimmy Phillips, Angleton, for petitioners.

Fulbright, Crooker, Freeman & Bates, Newton Gresham and Sam H. Hood, Jr., all of Houston, Rucks, Enlow & Kee, Angleton, for respondents.

GARWOOD, Justice.

Petitioners Wade et al. as plaintiffs had judgment on a verdict in the trial court for Workmen's Compensation incident to an alleged industrial accident on the afternoon of April 12, 1944, whereby Henry G. Wade inhaled an excessive amount of chlorine gas while working as a painter for Dow Chemical Company at its Freeport, Texas magnesium manufacturing plant and died from resultant bronchial pneumonia on April 15th following. On appeal of the defendant-respondent, Texas Employers' Insurance Association, the Galveston Court of Civil Appeals overruled all of its contentions except that of impropriety of the closing argument of counsel for petitioners, but on the latter ground reversed and remanded the case for a fifth trial. 236 S.W.2d 836. Petitioners here ask, of course, for reversal of the reversal and for affirmance of their trial court award.

The essential matter in litigation was the factual one of whether Mr. Wade died from the accident alleged or from purely natural disorders of certain abdominal organs, which became critical just about the time of the alleged accident, this controversy including, moreover, a contest over whether the deceased in fact suffered an accident.

The alleged accident occurred just outside the ground floor of a large building, on which the deceased and nine others of a 'paint crew' were working. The upper floor of the building, also very large, contained the 'mag cells', or apparatus for 'cooking' the magnesium, which were in operation at the time and evidently gave off some amount of chlorine gas, the workers who conducted the operation wearing gas masks, though the area was ventilated by large windows on the sides and suction fans designed to maintain a draught out through the ceiling. There was evidently no other source of gas except other and similar 'mag cell' buildings quite close by. Some of the painters were working on scaffolds on the outside of the upper floor, but Mr. Wade, who was not permitted on scaffolds because of his age (about fifty-nine years) and a chronic nervous affliction, was working at ground level, painting some hydrants and one of the doors. The painters were not equipped with gas masks customarily or on April 12th, the date of the alleged accident.

The case for the plaintiff-petitioners was more or less as follows: The nearest thing to direct evidence of the deceased having inhaled an appreciable amount of gas was the testimony of two of his fellow-painters (Muesse and Gormey) that, on the afternoon of May 12th, there was an unusual amount of gas present and that Mr. Wade, while appearing to be ill, made statements such as 'this gas is about to get me' (the latter being admitted as res gestae). Without reference to the medical testimony, there was, moreover, considerable evidence to the effect that, until about the time he thus inhaled the gas, he was in apparently normal health and vigor, but that, beginning promptly thereafter, he gave indications of critical illness, including various signs, such as red eyes, coughing and complaints of chest pains, suggestive both of an excessive inhalation of gas and acute bronchial disturbance. Much of this latter proof came from petitioners, Mrs. Wade (the widow) and Odel Wade (a son), and from a friend and coemployee of Mr. Wade named Ingle. From these witnesses, the petitioners made attempts before the jury to elicit evidence of post-accident statements of Mr. Wade in addition to mere complaints of pain, and, at least in the case of Ingle, the testimony in view was obviously a repetition of Mr. Wade's earlier statements specifically asserting illness from gas. However, the testimony of these witnesses was largely restricted by the court to declarations of pain and its location.

The medical proof for petitioners was mostly that of a pathologist, who, some six weeks after Mr. Wade was buried, was retained to and did perform an autopsy, but also included that of a diagnostician, who had not seen Mr. Wade or his remains, but answered hypothetical questions based on the autopsy and the abovementioned 'before and after' proof given by lay witnesses. This expert testimony supported the claim of accidental death. Petitioners also used, by way of rebuttal, some written testimony of a Dr. Rigdon, who had testified for respondent on an earlier trial.

The case for the respondent rested heavily on its evidence from Mr. Wade's own physicians, three in number, who alone attended him in his brief and last illness. This evidence included testimony of two of them, whose diagnostic interview with him and examination of him on the morning after the alleged accident, supported the defense and negatived in effect any thought or complaint on the part of Mr. Wade that he was suffering from exposure to gas. Also included were the surgical findings of two of these physicians, who later on the same day performed a serious exploratory operation on him, their general conclusions resting in part on such findings.

The respondent also presented the witness, Yoakum, 'leader' of the paint crew with which Mr. Wade was working, who testified that, during the afternoon of April 12th, Mr. Wade did seem to be indisposed but in conversation with the witness did not mention gas; that no one of the crew complained of or gave indication of being affected by gas; that he had seen Mr. Wade nauseated after eating on several occasions preceding April 12th, etc. Yoakum was the only witness from the rather large paint crew, aside from petitioners' witnesses, Muesse and Gormey. Petitioners introduced a sheet containing the full roster of the crew and also developed on cross- examination of Yoakum that some of them, who did not testify, were still working at the Dow plant at the time of the trial (though, of course, they were employees of Dow Chemical Company, not of respondent).

In connection with the argument, no objection was made on behalf of the respondent until (to quote from the qualifications to the bill of exception): 'At the conclusion of said argument complained of and set forth in the defendant's Bill of Exception No. 2, and while the jury was leaving the box under the custody of the bailiff preparatory to retire to the jury room to consider their verdict, counsel for defendant moved to the bench and advised the Court that he wished to make certain objections to the closing argument of Mr. Hill, counsel for plaintiffs. The Court advised counsel for defendant that he desired to let the jury go to the jury room and that he would treat such objections as having been made before the jury retired. The members of the jury were permitted to retire to the jury room, but were not given the documentary evidence introduced on behalf of both parties until after the conclusion of the motions filed on behalf of both parties as hereinabove set forth in the Defendant's Bill of Exception No. 2. At the conclusion of the defendant's motion, as hereinabove set forth, this Court overruled said motion on the ground that the objections were not timely made.'

The motion of respondent prayed for a mistrial and alternatively an instruction designed to 'cure' the alleged irregularities The mentioned motion of the petitioners (evidently following that of respondent and also overruled) was that the jury be recalled and instructed not to consider the hereinafter discussed portions of their own argument, which, among others, were attacked by respondent. It recited that 'counsel for defendant has expressed his unwillingness to call the jury back at this time,' and such was evidently the fact, the jury having then been out for apparently some twenty or thirty minutes.

The portion of the argument quoted in the opinion below reads as follows: "Now Men, before I sit down I want to point out some of the evidence I think is relevant. You will keep in mind, I know, that Mrs. Wade has been consistent on this, she has told the doctor of the gas all of the way through, and this isn't something that she dreamed up, and they never denied it, she proved it to you, she proved to you there was gas, proved it to you by those witnesses, that in all probability he inhaled it and it brought on this process. Of course, she hasn't told you what he (Mr. Wade) said, that is not admissible testimony. She has been consistent when she told you of the symptoms he has, the cough, the burning eyes, and she hasn't been alone. Was Roy Ingle lying to you? Did he affect you that way? Has he got anybody's axe to grind? Oh, he told what was asked under the rules of evidence, and he told you those same things; he told you about the complaints that he had. Men, it is the little things that crop out in a lawsuit that give you a lot of life."

The court below evidently had also in mind, however, a further passage, said to deal...