Lewis v. Texas Employers' Ins. Ass'n , 1946 Tex. App. LEXIS 708 ( 1946 )

This is a suit to set aside an award of the Industrial Accident Board and to recover on behalf of appellant, widow of Ben Lewis, compensation benefits by reason of fatal injury allegedly sustained by the latter while in the employ of A. A. Greer, plastering contractor. Upon jury findings in response to special issues, the court rendered judgment for defendant insurer from which claimant has duly perfected an appeal.

Deceased Lewis had been engaged generally in carrying plaster to workmen on the job; also in moving equipment as required. There is testimony that on December 15, 1944, Lewis received a blow on his stomach while carrying a mortar board (wooden, three feet square, four legs, weight some 50 pounds) up a stairway, by reason of its bumping against an adjacent wall; that he at once complained of pain in lower abdomen, though finishing his day's work; that he did not return to the job, and died January 2, 1945; a later autopsy disclosing that the cause of death was an appendiceal abscess.

It was the contention of appellant that said abscessed condition was chronic, having existed sufficiently long for a wall of dead tissue to form, limiting infection, and into which the appendix tip had protruded; that a perforation of appendix followed the blow of December 15, resulting in death some two weeks later. On this, the testimony of medical experts was highly conflicting; much of which supported defendant's theory that death of Lewis resulted from natural causes independently of and in nowise connected with his employment.

Jury issues and answers material here are, in substance: That Ben Lewis sustained accidental personal injury on December 15, 1944, while in course of employment with A. A. Greer; answering "No" to issues 3 and 4, reading: (3) "Do you find from a preponderance of the evidence that such injury, if any you have found in answer to special issue No. 1, naturally resulted in the death of Ben Lewis?" (4) "Was the death of Ben Lewis solely the result of disease ?"

Summarized, the points of appeal are: (1) The court's error in rendering judgment for defendant because of irreconcilable conflict in material issues of fact, in that, only two alternatives were presented in the record — (a) death caused in part by injury or (b) death caused solely by disease; the jury having found that the personal injury sustained did not naturally result in the death of Lewis and, also, that his death was not solely the result of disease; (2) error in the wording of issue 3, with the term "naturally resulted" defined as meaning "according to the natural course of events, according to nature, spontaneously"; since (a) such form of issue and definition precluded the idea of there being more than one cause of death and (b) such submission required the jury, on affirmative answer, to say that the accident was a proximate cause of death; (3) error in the court's instruction on "injury" or "personal injury," since the language thereof excludes from consideration by the jury of a death from injury that may have aggravated or accelerated a pre-existing disease; (4) — (a) error in refusing to admit in evidence that part of a letter filed with the Industrial Accident Board setting forth patient's case history as given to his physician when applying for treatment, said letter being offered on cross-examination of the doctor who admitted authorship thereof, there being admissions in the rejected portion that would serve as a proper basis for cross-examination; (b) in placing limitation on the cross-examination of Dr. Jay Waddell with respect to case history given him by the patient when applying for medical treatment; (5) — (a) error in refusal of plaintiff's first offer of autopsy report in evidence after identification by Dr. Bell, since said report contained objective fact findings as to condition of deceased's body material to ascertainment of cause of death; (b) in refusing to permit the witness Dr. Gilbert to take into consideration the autopsy report made by Dr. Bell, since same likewise contained material objective findings which were a proper basis for the opinion of witness as to cause of death; (6) error of court in striking from counsel's hypothetical question addressed to Dr. Gilbert, plaintiff's medical expert, the hypothesis of deceased's appendix having been involved on day of injury, plaintiff having previously shown by witnesses Griffin and Bell that the appendix was either involved on said date, or that there was a likelihood of involvement.

A material conflict in jury findings follows a determination that one answer, standing alone, supports a plaintiff's recovery, while the other answer, standing alone, supports an opposite judgment. Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453. Under the answers to neither issue 3 nor 4 was plaintiff entitled to a judgment herein, and thus her argument of irreconcilable conflict is refuted. To the contrary, issue 3 requires a defendant's judgment, while plaintiff cannot recover under issue 4, absent a finding of causal connection between injury and death. In Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356, cited by appellant, a connection was established by the jury finding that Guzman's death was not due to a cause other than an injury sustained in the course of his employment. Here, the word "disease" is not defined in the court's charge, and whether the jury considered that an infected appendix was a disease, we do not know. More in point is Josey v. Maryland Casualty Co., Tex. Civ. App. 153 S.W.2d 259, where, under the particular facts, a jury finding that plaintiff did not sustain her alleged injury, and another that her condition was not due solely to a cause other than accidental injury, were held reconcilable; and the negative finding presented in Josey's appeal as conflicting, appears much more exclusive of other causes than is issue 4 of the instant case. The rule is settled that where an apparent conflict can be reasonably reconciled, "or where one finding is general and the other specific; or even where one finding is duplicitous, or ambiguous, and the other is definite and specific, a judgment may properly be entered thereon." Howard v. Howard, Tex. Civ. App. 102 S.W.2d 473, 475 (writ ref.) "It is the duty of the courts to construe verdicts as not irreconcilably conflicting when there is any reasonable explanation of seeming conflicts." Bragg v. Hughes, Tex. Civ. App. 53 S.W.2d 151, 153. "All the issues must be considered together as a whole. If, when construed as a whole, they admit of more than one reasonable construction, the trial court has power to apply that reasonable construction which he deems proper." Texas Indemnity Ins. Co. v. Bridges, Tex. Civ. App. 52 S.W.2d 1075, 1079 (writ ref.).

Appellant's only objection to the court's charge reads: "Plaintiff objects and excepts to the submission of special issue No. 3 for the reason that as it stands it places too great a burden upon the plaintiff, and says that said special issue should instead submit the question as to whether the injury, if any, was a producing cause of the death of Ben Lewis." Both in motion for new trial and in brief, it is con tended that issue 3, as framed by the court in light of accompanying definitions, placed the undue burden on plaintiff of requiring the jury, on affirmative answer, to find (a) that the injury to Lewis was the sole proximate cause of death; or (b) was a proximate cause of death. However, the objection leveled at aforesaid charge merely complained that issue 3, in form, should have inquired of the jury "as to whether the injury, if any, was a producing cause of the death of Ben Lewis." The wording "naturally resulted in," or similar phraseology, has often been approved as a part of claimant's primary issue establishing causal connection; see article of Mr. Preston Shirley, 18 Texas Law Review, 365. It is but an alternative for "producing cause"; the latter term being commonly defined as "such as naturally resulted" in the particular incapacity or death; Travelers Ins. Co. v. Johnson, Tex. Civ. App. 84 S.W.2d 354; Strong v. Aetna Cas. Surety Co., Tex. Civ. App. 170 S.W.2d 786.

Clearly, appellant goes beyond the scope of above quoted objection in the present contentions that the court has erroneously defined the term "naturally resulted"; and, also, in the definition of "personal injury," as not including the element of aggravation of injury by reason of pre-existing disease. The charge was not objected to in these particulars until after verdict and judgment. Under Texas Rule of Civil Procedure 279, appellant is in no position to complain of the matters presented in points 2 to 5 inclusive. "Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of a judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment." Great American Indemnity Co. v. Sams, 142 Tex. 121,176 S.W.2d 312, 313.

Portion of a letter written by Dr. Waddell to the Industrial Accident Board reciting case history given by Ben Lewis was excluded, but the ruling, if error, was harmless, for (a) the jury, in fact, found that an injury had been sustained; (b) the rejected matter was merely cumulative of prior testimony of the witness Teabern Jones; (c) the same facts were later testified to by the witness over defendant's objection.

At the time Dr. Gilbert testified on behalf of plaintiff, defense objection had been sustained to the autopsy report attached to the deposition of Dr. Bell, but signed by Dr. Griffin; though a copy of the report duly signed by Dr. Bell was afterwards admitted without objection. Such ruling did not unduly restrict plaintiff in the propounding of hypothetical question to Dr. Gilbert, such witness stating that he was already familiar with the report of autopsy, his answers taking into consideration the information gathered from that instrument. Neither is reversible error shown in the court's exclusion from the same hypothetical question the statement "and it appears from this autopsy that the man's appendix was involved * * * at the time of the accident." After answering plaintiff's basic question, Dr. Gilbert testified rather fully, over defendant's objection, stating his assumption that the appendiceal condition of Lewis had been of long development and that plaintiff's question in chief included all facts necessary to form such opinion.

The foregoing points of error, having been fully considered, are overruled, with the result that the judgment of the trial court must be affirmed.