Texas Indemnity Ins. Co. v. Warner

JOHNSON, Chief Justice. This appeal is from a judgment, rendered upon the verdict of a jury in response to special issues, awarding appellee, M. B. Warner, compensation for total and permanent disability caused by heatstroke received while fighting a fire on the premises of the Ohio Oil Company’s lease, for whom he was working, and for whom appellant was the compensation carrier, under the Workmen’s Compensation Law, Article 8306 et seq., Vernon’s Texas Civil Statutes. Points 1 and 2 in appellant’s brief raise the contention that the evidence is insufficient to sustain the verdict and judgment, in that, it is claimed, the undisputed testimony shows that plaintiff’s incapacity was solely the result of heart disease. Points 4, 5 and 6 raise the contention that the testimony was insufficient to show “good cause” for appellee’s failure to file his claim with the Industrial Accident Board within six months from date of his injury, as required by Article 8302, Sec. 4a, Vernon’s Texas Civil Statutes. We are unable to agree with either of the contentions. Ap-pellee testified, in substance, that he had been working for the Ohio Oil 'Company 'approximately eighteen years, regularly six days per week, without losing any time; that he was in good health so far as he knew, and had always been able to do his work; that his job was firing the boiler, pumping water and oil, and cleaning up around the ■station on the lease; that in September or October of 1938, on a warm day, while fighting an oil fire on the lease, he became overheated, turned blind, “fell out”, and remained unconscious for about fifteen' to twenty minutes; that upon regaining consciousness he was extremely cold, clammy, sweaty and weak; that he then started to walk to his dwelling house (located about 300 yards distant), got about halfway and was, from there on, assisted by his wife and son-in-law to his home, where he went to bed; that in about two weeks he went back to work; that this occurred on Friday or Saturday and during that week he went to see a doctor who treated him; that the [175] doctor (Dr. McNabb of Carlisle, Texas) did not tell him that he had heart trouble or that his heart had been affected by the heatstroke; that in about two weeks he went back to work, thinking he had entirely recovered from the heatstroke, and that he continued to work, thinking that he had recovered from the heatstroke, until sometime before Christmas (November 11, 1938) while repairing a water pump he had a ‘.‘falling-out spell”, which was different from the symptoms when he became overheated, in that it began by a cramping in the lower part of the abdomen and radiated up into his left side and was not accompanied by blindness; that he thought this spell was caused by indigestion or something he had eaten, and did not associate it with the heatstroke he had previously sustained; that he continued to work until February 1, 1939, when he had a third spell similar to the second one, after which he was examined by the company’s doctors and was pronounced unable to work and discharged on February 15, 1939, by reason, thereof; that the company’s doctor (Dr. Engle) told him at that time that he had a leaky heart, but did not tell that it was caused or affected by the heatstroke, from which he then thought he had entirely recovered; that he did not know that his heart trouble was the result of the heatstroke, that none of the doctors told him that the heart trouble was the result of the heatstroke, until about the time of filing his claim with the Industrial Accident Board, which was more than six months after receiving the injury; that during the time after returning to. work about two weeks after receiving the heatstroke until he filed his claim, appellee thought that he had recovered from the heatstroke, and that the trouble was his stomach and heart, which troubles he did not associate with the heatstroke or know that it had caused same. Appellant makes criticism of the fact that appellee did not remember the exact date he received the heatstroke. Appellee testified that it was sometime in September or October of 1938, and further that during the week following the Saturday on which he received the heatstroke he went to see a doctor, at the nearby town of .Carlisle, who treated him. He did not remember the name of the doctor, but it is shown to have been Dr. J. F. McNabb of Carlisle, Texas, who testified as a witness for appellant. He fixed the date of his first examination of ap-pellee as being Monday, September 26, 1938. The two prescriptions which he wrote for appellee on that occasion were dated and filled at a Carlisle drug store on September 26, 1938, which reasonably fixes the date of the heatstroke as being September 24, 1938. Dr.. McNabb further testified for appellant that upon his first examination of ap-pellee, September 26, 1938, he was of the opinion that appellee had chronic myocar-ditis, which is explained as being a weakening of the muscles of the heart; and that he had “aortic and mitral stenosis and insufficiency, that is the medical name for leakage of the heart.” He was of the opinion that heatstroke would not cause the trouble which he found “on the valves” of appel-lee’s heart. On cross-examination by counsel for appellee, Dr: McNabb testified that some of the conditions which he found could have been caused by heatstroke, namely, that “a heatstroke would cause the heart muscles to dilate and stretch the valve and give you an insufficiency or a leaky valve” ; and that he found the presence of such conditions. He did not remember whether or not ap-pellee told him of sustaining the heatstroke, he was more concerned with treatment of the conditions as he found them than with their causes. He treated appellee for indigestion of which he was complaining. He also treated him for the heart trouble which he discovered, but he did not tell appellee, of having discovered the heart trouble or that he was treating him for heart trouble. Dr. George E. Hurt, witness for appel-lee, testified that in April 1940, he made a physical, X-ray, laboratory, and heart graph examination of appellee and found him suffering from a bad heart condition; that he had “double mitral insufficiency”; that “the mitral valves had been destroyed and that he had an aortic regurgitation; in other words, a regurgitation of the blood from the larger blood vessels back into the heart”; that he examined appellee again on the day before testifying and found that all the valves of the heart had become involved; that appellee is not now and never will be able to work; that “if he takes proper amount of'rest and is careful, he may be •able to live a few years, but that he should now be in bed.” In answer to a question incorporating a history of the case as related in appellee’s testimony, Dr. Hurt testified that in his opinion the first spell ap-pellee had, at time of fighting the oil fire, “was an acute heart attack, precipitated, by exhaustion and by being overheated and putting too great a strain .on the heart.” He further testified that a man with a weak heart is more susceptible to a heat stroke or heat exhaustion than one with a strong , [176] heart; that the symptoms of appellee getting too hot, turning blind, followed by unconsciousness and a cold, clammy feeling and extreme weariness were symptoms of having sustained a heatstroke or heat exhaustion, while fighting the fire; that the subsequent symptoms of cramping in the stomach are due to his heart condition; that “it is my opinion that this man probably had a disability to his heart or a heart that had been weakened before such injury took place, and that at the time he became over-exhausted or overheated, it put a tremendous strain on his heart at the time and that this strain caused this heart condition and breakdown and caused his disability * * * in my opinion, if this man had not suffered this condition (the heatstroke) he might have lived out a normal life or the normal extent of his life and died of something else, and not have been aware of any heart trouble * * * and would have continued pursuing his usual tasks, unless that or a similar type of injury had occurred.” On cross-examination, Dr. Hurt further testified that upon his examination of appellee he found objective symptoms that would characterize his injury as resulting from heatstroke; that he was of the opinion that appellee had myocarditis, a weakening of the muscles of the heart, prior to sustaining the heatstroke; that the condition in which he found appellee’s heart, causing his disability, was not the result of the myocarditis, but could have been the result of injury superimposed on the myocarditis. On redirect examination, Dr. Hurt further testified that a person may have myocarditis and be able to work, but that an injury such as heatstroke or heat exhaustion superimposed upon myocarditis may result in disability to work; that upon his examination of appel-lee he found no other symptoms or conditions which could have caused appellee’s present disability, except the heat exhaustion or heatstroke; that he found the effects of cerebral edema which showed that he had previously sustained a heatstroke. We think the testimony above set out is sufficient to support the findings of the jury that appellee’s disability was caused by heatstroke, and that such disability was not caused solely by heart trouble. American General Ins. Co. v. Webster, Tex.Civ.App., 118 S.W.2d 1082; New Amsterdam Casualty Co. v. Herbert, Tex.Civ.App., 296 S.W. 688; Herbert v. New Amsterdam Casualty Co., Tex.Com.App., 1 S.W.2d 608. The fact that appellee may have had a diseased heart at the time of sustaining his injury would not prevent his recovery of compensation. Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356. The claimant is not required to show that the injury was the sole cause, or a proximate cause, of a disability, it is sufficient for him to show that the injury was a producing cause of the disability, Travelers’ Ins. Co. v. Peters, Tex.Com.App., 14 S.W.2d 1007, and that the existing disease was not the sole cause of the disability. Commercial Standard Ins. Co. v. Noack, Tex.Com.App., 62 S.W.2d 72. We are of the further opinion that the testimony, above related, is sufficient to support the following findings of the jury: “that from the time he returned to work down to the time he filed his claim for compensation, M. B. Warner believed that his disability was caused by disease unconnected with injury,” and “that the failure of M. B. Warner to file his claim for compensation before he did file it was caused by his belief that the disability was caused by disease unconnected with injury,” and “that in failing to file his claim for compensation before he did file it, M. B. Warner acted as a person of ordinary prudence would have acted under the same or similar circumstances.” Texas Employers Ins. Ass’n v. Little, Tex.Civ.App., 96 S.W.2d 677; Texas Emp. Ins. Ass’n v. Roberts, 135 Tex. 123, 139 S.W.2d 80. Points 3, 8, 9, 10, 11, 12 and 13, each seek a review of the action of the trial court in overruling appellant’s objections and exceptions to the court’s charge submitted to the jury. None of these points are supported by any proper assignment of error. The case is one in which a motion for new trial was required to be filed, and was filed, in laying a predicate for the appeal. The action of the trial court in overruling appellant’s objections and exceptions to the charge was not complained of or assigned as error in the motion for new trial. The assignment of error (No. 11 in the motion for new trial) upon which point 3 is alleged to be based reads as follows: “The court erred in that part of the main charge to the jury designated as special issue No. 1.” The other points are based upon like assignment of error as that above copied, except that they refer to special issues Nos. “16, 4, 6, 9 and 14.” ' Such assignments of error do not in any way attempt to point out to the trial court or specify the ground, if any, upon which it was meant to be founded. They fail to substantially comply with either the old rules, Stillman v. [177] Hirsch, 128 Tex. 359, 99 S.W.2d 270, or the new rules Nos. 320 and 370, which are alike in providing that a ground of error not distinctly specified in the motion for new trial shall not be considered. The judgment of the trial court will be affirmed.