Hebert v. New Amsterdam Casualty Co.

NICKELS, J. A judgment for compensation as for death “resulting from injury” (section 8, art. 8306, R. S. 1925) was reversed and judgment rendered for the insurer by the honorable Court of Civil Appeals, Ninth District, 296 S. W. 688. The case is properly and fully stated in that opinion. The matters assigned are discussed below. Compensable death must have for its foundation “injury” (section 8, art. 8306) of the nature of “damage or harm to the physical structure of the body” (article 8309, R. S. 1925), and of origin in causative danger in the employment (article 8309), Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 110, 246 S. W. 72, 28 A. L. R. 1402; In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1915A, 310; Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968. The jury attributed death to “heat stroke,” and there is evidence to support the finding. As indicated in O’Pry v. Security Casualty Co. (No. 1022-4917) 1 S. W. (2d) 590, we regard ourselves as bound by the opinion in Bryant v. Continental Casualty Co., 107 Tex. 582, 586-589, 182 S. W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517, on the point that when “heat stroke” is shown bodily injury is shown. Hebert (immediately before his body was found) was engaged, in the line of duty, in what may easily be regarded as unusually arduous manual labor. It was his business to load (with the aid of various devices) heavy logs onto a wagon, and the locus of his duties was within a forest and at a point where the sun’s heat as it struck his body may have been intensified (rather, its amelioration prevented) by the nature of the premises. We have no warrant, then, to say, as a matter of law, that his death (through “heat stroke”) is not traceable to causative danger in the employment — as, in fact, the jury found it was. We recommend reversal of the judgment of the Court of Civil Appeals and affirmance of that of the district court. OTJRETON, C. J. Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed, as recommended by the Commission of Appeals.