Zurich General Accident & Liability Ins. Co. v. Wood
| Decision Date | 17 October 1928 |
| Docket Number | (No. 3087.) |
| Parties | ZURICH GENERAL ACCIDENT & LIABILITY INS. CO. v. WOOD et al. |
| Court | Texas Court of Appeals |
Suit by the Zurich General Accident & Liability Insurance Company against Marion Wood and others, to set aside a judgment of the Industrial Accident Board awarding compensation. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
Chamberlain, Green & Wade, of Dallas, and Jos. H. Aynesworth, of Stinnett, for plaintiff in error.
W. J. Oxford, of Stephenville, and J. A. Johnson, of Mineral Wells, for defendants in error.
This suit is an appeal to the district court of Hutchinson county, Texas, by appellant insurance company from a judgment of the Industrial Accident Board of Texas, awarding compensation to Mrs. Wood and her minor children for the death of the husband and father, W. F. Wood. On trial in the district court, judgment was rendered in favor of appellees, and appeal was taken therefrom to this court.
W. F. Wood, an employee of Kenyon-Kearns Feed Company, was attempting to crank a Ford truck, and the truck started "rolling up," pushing Wood in front of it and it rolled about two-thirds of the way across the street. Wood was either unable to get out from in front of the car, or was attempting to stop it by pushing against it, and the car pushed him into a gravel wagon, which was passing, and the wagon wheel rolled over one of Wood's feet, and he was pushed against the wagon and held there until it passed. Wood was then enabled to get from in front of the car, and it rolled on until it struck a building on the other side of the street. From the time the car started pushing Wood, he was unable to check it until it struck the wagon. The car struck the left rear wheel of the wagon. At the time the impact came between the car and Wood's body and the wagon wheel, Wood turned his back to the car, and apparently, when he realized that the wagon was against him, placed his hands against the body of the wagon and braced himself against the car. The car did not hit the wagon, Wood being between it and the wagon. The car was not damaged in any way. Wood was not knocked down, but, when the witness got to him, Wood told him that his foot was hurt, and he was helped across the street into the feed building. This was the only injury Wood complained of at that time, and stated that he did not think he was hurt badly anywhere else.
In about eight or ten days, he complained of his back hurting him, and a doctor, diagnosing his condition, diagnosed it as an attack of appendicitis, and he was taken to Amarillo, where he was operated on. Dr. R. D. Gist, who was the surgeon operating, found that his appendix was not affected, and, on further investigation, discovered a diseased kidney. Dr. Gist testified, as to the condition in which he found the kidney and his opinion of what caused the condition, substantially as follows: That the right kidney was a sack of pus, only the capsule of the kidney remaining; it was smaller than normal. On cross-examination, the doctor testified: That he made a physical examination of Wood before operating on him for the purpose of a diagnosis, and found that he had fever, rapid pulse, distention of the abdomen, difficulty of breathing, and marked tenderness throughout the abdomen. The condition of the kidney was chronic, with acute acerbation. The doctor did not know how long standing such a condition would exist before it became chronic, but says this condition had been existent for many years, and that, if a blow is delivered to the region of a person's kidney of sufficient violence to cause inflammation and adhesions, it might or it might not cause immediately a great deal of pain to the person, and there would not necessarily be external evidence of the injury. The patient would more than likely complain of pain immediately following the blow. If a man suffers injury of sufficient violence to involve a kidney, in some cases he would pass blood in his urine, and in others not. The doctor also stated that he was unable to state what the inflammation of Wood's kidney was due to; it might be due to tuberculosis.
In the argument of the case and while counsel for plaintiff was addressing the jury, the defendant offered in evidence a certain interrogatory No. 6, to the introduction of which the plaintiff objected and which will be discussed later. This question and answer were admitted in evidence by the trial court, and in answer to the question Dr. Gist testifies that the condition of the kidney could have been brought about by external physical injury to Wood's person, by his body having been caught in an impact between the hind wheel of a wagon loaded with gravel and the radiator and front part of the forward moving car, striking him in the right side and back in the region of his right kidney. The witness Mayfield, who was manager for Kenyon-Kearns Feed Company, and under whom Wood worked, testified that during the time Wood worked for him he was apparently in good health.
Appellant, by several propositions in varied forms, presents the alleged error that the burden of proof is placed on the claimants for compensation to establish their right to recover, and in such a case, where the claimant's pleadings contain a specific allegation that the death of the employee, on account of whose death compensation is claimed, "resulted from wounds and bruises to his side and back, which caused the kidney to rise, from which inflammation and pus contained in said kidney, produced from said external injury, peritonitis set up," the said claimed injury occurring January 31, 1927, and the death occurring on February 17th, following an operation on a diagnosis of appendicitis, there must be evidence of probative force offered in support of such allegation. In the absence of such evidence, the court should instruct a verdict for the insurance carrier, and a failure to do so on timely request is error.
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