-
BOND, Justice (dissenting).
The principal question to be decided on this appeal and on which I register my dissent is whether or not there was any evidence or any sufficient evidence to warrant a submission to a jury of appellant’s claim .that her husband’s death was caused by traumatic appendicitis effected solely by accidental means.
Appellant alleged that “on or about, Sunday night, April 17, 1932, while at his said home faking a shower-bath in the bath-tub, and, while standing in the bathtub, The said Townsend A. McVeigh, now decéased, accidentally slipped and fell from the bath-tub with great force and'violence to the tile floor below, striking the" floor with his head, back, and abdomen, and did then and there injure and rupture his appendix, severely damaging, aggravating, and injuring his appendix, causing the same to repture and burst, which, in turn, produced in the said Townsend A.' McVeigh’s body what' is know as peritonitis.”
The theory on which appellant based her ' suit and carried forward in her brief was narrowed to traumatic appendicitis, caused solely by accidental means. I conceive it to be the duty of courts to meet the issue advanced by the parties and not theorized on issues not raised by pleadings or evidence. It is not for courts to advance a new theory of their ow.n. If traumatic appendicitis, effected by the fall, was not the sole cause of the peritonitis resulting in the death of appellant’s husband, then, manifestly, there was no other injury shown by pleadings or proof to have caused such condition.
The evidence, I think, is insufficient to raise any issue to be submitted to a jury effecting the death of Townsend A. McVeigh as caused by accidental means. At most, it shows only a possibility that there might have been, or could have been, some connection between the fall and the condition which caused the death. Each of the doctors expressly declined to state, after repeatedly asked by appellant, that there was any reasonable probability that the trouble was caused by the fall; evidently the technical subject was beyond the knowledge of the lay witnesses. Indeed, Dr. Lott, who performed the operation, and Dr. Lee who assisted him in the operation, furnished evidence, reflected in the record, that there was no connection whatever between the fall and the condition of the deceased; that there was no trauma resulting from the fall; and that he died as a result of chronic appendicitis. The only evidence of the fall shown on the outside or inside of the body was a bruised place on his back. It is inconceivable to a layman’s mind how a fall and injury to one’s back could produce appendicitis, the appendix being located in- front of the human body. The doctors who were in a position to know, and whose testimony was offered -in evidence by 'appellant, did not venture a theory of even a probability that such condition resulted from the fall; the most they did say was a suspicion or surmise in the realm of possibility, that it could have done so.
It is well settled in this state that evidence which merely, raised a suspicion or surmise of the fact sought to be proved is, in contemplation of law, no evidence. The fact that the deceased was in apparently good health before the fall and thereafter suffered from appendicitis, resulting in his death, is insufficient to support a verdict or judgment based thereon,
*651 or to justify submission of an issue as to whether or not the death of Townsend A. McVeigh was caused by accidental means.Appendicitis is, as known to all men, an insidious inflammation of the vermiform appendix of the human race, and, because a healthy, robust man or woman is suddenly afflicted with that condition, raises no evidence of probative force that the condition was caused by an accidental fall, nor does the fáct of an accident carry with it a presumption that it produced the condition. It was incumbent upon appellant to show that the fall did produce the condition, or such facts that ordinary minds would not differ as to the conclusion to be drawn from such evidence.
The Supreme Court of this state, in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063, said: “From a careful examination of the cases, it appears (1) that it is the duty of the court to instruct a verdict, though there be slight testimony, if its-probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to be established, such testimony, in legal contemplation, falling short of being ‘any evidence’; and (2) that it is the duty of the court to determine whether the testimony has moro than that degree of probative force. If it so determines, the law presumes that the jury could not ‘reasonably infer the existence of the alleged fact,’ and ‘that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.’ The broad and wise policy of the law, formed in and descending to us through the crucibles of time, does not permit the citizen to be deprived of his property, his liberty, or his life upon mere surmise or suspicion, and places upon a trained judiciary the grave responsibility of determining as a question of law whether the testimony establishes more.”
To the same effect, is the case of Garrett v. Hunt (Tex.Com.App.) 283 S.W. 489, 491:
“ ‘It is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the fact sought to be established.’
“For in such a case the law presumes that the jury could not reasonably infer the existence of the alleged fact, and that there is no room for ordinary minds to differ as to the conclusion to be drawn from such evidence.”
In the case of E. M. Patton v. Texas & P. Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 277, 45 L.Ed. 361, the principle here urged was stated in that case by the United States Supreme Court, as follows: “The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. * * * It is not sufficient for the employee to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was. * * * And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible ánd for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real 'cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony; and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of .proof resting upon all plaintiffs.” See, also, Langford v. El Paso Baking Co. (Tex. Civ.App.) 1 S.W.(2d) 476; Waco Drug Co. v. Hensley et al. (Tex.Com.App.) 34 S.W.(2d) 832; Seybold v. Johnson, et al. (Tex.Civ.App.) 11 S.W.(2d) 399; Grand Temple and Tabernacle in State of Texas of Knights and Daughters of Tabor of International Order of Twelve et al. v. Independent Order of Knights and Daughters of Tabor of America et al. (Tex.Com.App.) 44 S.W.(2d) 973; Teal v. Southern Pacific Ry. Co. et al. (Tex.Civ.App.) 31 S.W.(2d) 337; Richards v. H. K. Mulford Co. (C.C.A.) 236 F. 677; Copeland v. Hines (C.C.A.) 269 F. 361; Ft. Worth & R. G. Ry. Co. v. McMurray (Tex.Civ.App.) 173 S.W. 929.
It will serve no useful purpose to extend my views on the controlling question, and, without further discussion of the issue', I find- myself unable to agree to the reversal of this cause; it should be affirmed; thus my dissent.
Document Info
Docket Number: No. 12069
Citation Numbers: 101 S.W.2d 644
Judges: Bond, Looney
Filed Date: 12/12/1936
Precedential Status: Precedential
Modified Date: 10/1/2021