Lewis v. Texas Employers Ins. , 197 S.W.2d 187 ( 1946 )

My dissent is from the disposition of the case made by the majority. The opinion by Associate Justice Young correctly states the case. I am in accord with the majority in overruling appellant's first point of error contending that the verdict of the jury is in irreconcilable conflict; also, in overruling appellant's fifth, sixth, seventh, eighth and ninth points of error, complaining of the rulings of the trial court on evidence. However, I think the majority erred in attaching to the jury's answer to special issues numbers 3 and 4, a meaning and significance not warranted when the definitions given by the court are considered.

Appellant alleged that "the stand hit the steps and caused it to strike him, the said Ben Lewis, in the stomach, which produced an injury to his abdomen and stomach injuring his appendix, which caused an abscess to form, which said abscess caused his death on or about the second day of January, 1945." (Tr. p. 3.) Appellee's answer, among other things, contained the following: "Defendant specially denies that the said Ben Lewis received any accidental injuries in the scope of his employment and, in this respect, would show to the court that his death resulted from natural causes entirely separate, independent of, and in no way connected with his employment by A. A. Greer." (Tr. p. 10.)

The evidence shows that immediately upon receiving the blow to his abdomen, Lewis dropped the mortar stand, held his side, seemed to be in pain, ceased work for a few minutes and, although worked the remainder of the day, did not return to work, complained of pain in his side, soon took to his bed, and died January 2, 1945, 17 days after receiving the injury; the autopsy showed that he died from a ruptured or abscessed appendix. The record fails to disclose that death could have resulted from an unknown cause. So, as revealed by the record, pleadings and evidnce, Lewis's death resulted either from the accidental blow to his abdomen that aggravated a slumbering appendix trouble which, becoming immediately and progressively violent, resulted in death 17 days later; or, that death resulted solely from "natural causes entirely separate, independent of, and in no way connected with his employment by A. A. Greer," as alleged by the appellee.

Appellant's theory, in my opinion, was supported by a preponderance of the evidence; not only the immediate circumstances connected with and following the injury, but the medical testimony also, preponderated in favor of this theory. Dr. Bell, who performed the autopsy, testified, in substance, that he found a chronic appendiceal abscess that had existed from one to two weeks, probably longer; that a blow could have caused a rupture; that it was probable that deceased's appendix was involved at the time he received the injury and that the blow produced perforation. Dr. Griffin, who assisted in the autopsy, described the condition that was found and expressed the opinion that deceased had an appendix trouble at the time he received the injury; answering a hypothetical question, the witness said that the blow could have been a producing cause of Lewis's death. Dr. Gilbert, answering a hypothetical question, expressed the opinion that the blow to the abdominal area ruptured the affected appendix, causing death.

In view of the status of the written pleadings and of the evidence, it became the duty of the court to submit "the controlling issues made by the written pleading and the evidence" (Rule 279), which, in my opinion, the court failed to do; and that, by reason of such failure, the jury was deprived of an opportunity to pass directly and specifically upon the merit of appellant's contention; instead, the court submitted special issue No. 3, as follows: "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?"

In order to understand what was comprehended in issue No. 3, and the significance of the answer of the jury to same, we must read into it the definitions the court gave of the term "injury" and the phrase "naturally resulted," employed by the court in the issue. The court defined "injury" as follows: "You are instructed that the term `injury' or `personal injury,' as used in this charge, refers to and means damage or harm to the physical structure of the body, sustained accidentally, and such disease or infection as naturally resulted therefrom;" also, defined "naturally resulted" as follows: "You are instructed that the term `naturally resulted,' as used in this charge, means according to the ordinary course of events, according to nature, spontaneously." The common acceptations of the term "spontaneously," used by the court in the definition of the term "naturally resulted," as stated by Webster, are: "proceeding from or acting by internal impulse, energy, or natural law, without external force; self-acting; synonymous with the term `automatic,'" and, as stated by Funk Wagnalls: "arising from inherent qualities or tendencies without external efficient cause, especially without constraint or coercion * * * not having material causation outside of itself; self-generated."

It is obvious that in answering issue No. 3, the jury was compelled to consider and apply the definition of "naturally resulted" in two connections, that is, to the term "injury" and to the cause of death. Issue No. 3, clothed with these definitions and transformed, would read substantially as follows:

Do you find from a preponderance of the evidence that such injury-damage, or harm to the physical structure of the body, and such disease or infection as naturally resulted therefrom, that in the ordinary course of events, according to nature and spontaneously, naturally resulted in the death of Ben Lewis, that is, in the ordinary course of events according to nature, spontaneously ?

The issue thus transformed, in my opinion, was tantamount to asking the jury whether or not the death of Lewis resulted solely from the accidental injury sustained. As thus understood, the jury, in my opinion, correctly answered the issue in the negative. However, I dissent from the view of the majority that the answer of the jury to this issue entitled appellee to judgment; on the contrary, in view of the issues made by the written pleadings and the evidence, I think judgment should have been rendered for appellant on the explicit findings of the jury augmented by an inescapable implication resulting from these findings. As disclosed by the record, the jury found that deceased was injured in the course of his employment; and, for reasons heretofore stated, I think their answer to issue No. 3 was tantamount to a finding that his death did not result solely (spontaneously) from the injury; and, in answer to issue No. 4, the jury found that death did not result solely from disease (diseased appendix). There being no suggestion of death from an unknown or undisclosed cause, the findings of the jury excluded every other probable cause of death except the real cause which, in view of the explicit findings made, obviously was in the mind of the jury; that is, that the accidental blow sustained by deceased to his abdominal area injured and aggravated a pre-existing affected appendix which, becoming progressively worse, ruptured and, 17 days later, resulted in Lewis's death. On the authority of Guzman v. Maryland Casualty Co., 130 Tex. 62,107 S.W.2d 356, presenting a very similar situation, I think judgment should have been rendered in favor of the appellant.

Appellant objected to 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." To the action of the court in overruling this objection, appellant urges several points of error, among others, Fourth Point, as follows: "The error of the court, in this, a compensation case, inquiring of the jury if such injury (defined as harm to the physical structure of the body and such diseases or infection as naturally result therefrom) resulted in death, since submission in this form entirely precludes the idea of death from injury that aggravates a pre-existing disease."

This point of error, in my opinion should have been sustained. It is true the objection is rather general, but, obviously, it had a meaning and suggested to the trial court wherein the issue placed too great a burden upon appellant, in that, before obtaining a favorable verdict, she was required to show that the death of Lewis resulted from the injury; that is, damage or harm to the physical structure of the body and such disease or infection as naturally (spontaneously) resulted therefrom; whereas, she was only required to show that the accidental injury aggravated a pre-existing disease or affected appendix, and that death resulted from the combined effect of both the injury and the preexisting disease. The issue submitted (No. 3), was not the issue made by the pleading and supported by the evidence.

I do not think any significance should be given to appellant's failure to prepare in writing and request the submission of an instruction as to whether the injury was a producing cause of death, as required by Rule 279, as such failure would not detract from the force and effect of the affirmative objection to the erroneous charge.

I also dissent from the view of the majority that the phrase "naturally resulted," as defined, is equivalent to and synonymous with the phrase "producing cause," or similar phrases. The cases cited by the majority in support of their idea in this respect, in my opinion, are not in point, for the reason that in neither of the cases was the phrase "naturally resulted," or similar phrases, defined, as in the instant case; nor was the term "spontaneously," or an equivalent, employed as in the instant case, which, in my opinion, differentiates this case from the cases cited.

However, if in error in the conclusions heretofore announced, in the alternative, I think that owing to the confusion and uncertainty resulting from issue No. 3, considered in connection with the erroneous and misleading definitions of the term "injury" and the phrase "naturally resulted" given by the court, that, without resorting to conjecture, judgment cannot be entered in favor of either party on the verdict of the jury; hence, that the judgment in favor of appellee should have been set aside, a new trial ordered, and the cause remanded for further proceedings. See West Lumber Co. v. Keen, Tex.Com.App., 237 S.W. 236; Maryland Casualty Co. v. Howie, Tex. Civ. App. 94 S.W.2d 220 (error dism.).