*1 338 , object the lawsuit in the ob- The the notice and together under
and ate property they were case at bar is not neighbors; divide servation their determine entitled being hus- deceased or to those by neighbors as recognized their en in the com- to it. It is to determine shall be reputation wife; their band and Ap- titled to his estate. If the that of hus- administer munity they lived was where deceased, regarded pellee is common wife they were so law wife band as entitled to surviving is much evi- she widow is ad so by neighbors. their There controlling ques Appellee’s and de- minister comports dence which estate. is; for determination and wife tion W.as with husband therefore conduct ceased’s Appellee the space permit its recita- common-law deceased? will not relation that wife of by against This is not a or or suit an tion and review. heir legal representative of the deceased. It is is an abundance We hold that there executor, against not or an ad a suit justify sub evidence in this record ministrator, guardian. judg or An adverse jury, and to of the issues to mission could not been ment was ren jury’s finding thereon. support the against legal dered in this an heir or Appellants with in connection contend executor, representative, against an or ad presented question second that this guardian. Appellants ministrator or Art. extending terms of comes within the appoint making right claim to be Appellee should and for such reason to administer this as ed estate the heirs of testify permitted to as not have been They Smith. right F. C. claim the be the deceased. transactions appointed they say they because are the Appellants’ We cannot sustain con next of kin to deceased. could, Appellants tention, but even we prohibit We hold Art. 3716 does not objections have waived their Appellee from testifying as to statements Ap by their detailed cross-examination of deceased, and transactions with the F. C. Porter, Reynolds pellee. Tex.Civ.App., v. Smith. Peters, 54 S.W.2d Dunn v. Tex.Civ. . App., Appellants’ points 126 997. All of S.W.2d are overruled the Trial Court proceeding appointment A for affirmed. administrator is not an action or executors, administrators, against guard or TIREY, J., participating on account judgment may ians rendered of illness. against them such. Nor is it an action as representa against legal the heirs or tives of a decedent. It is a contest between parties right for to administer Appellee right
the estate. The herein had Smith,
to administer the estate of F. de C.
ceased, grows out of her relation de wife, surviving ceased as and not as an v. CAS. CO. FOUNTAIN. CONTINENTAL McWillie, Ingersol Tex.Civ.App. heir. No. 14614. ref.; er. S.W. Walton v. Wal Appeals of Texas. Dallas. Civil Court of ton, Tex.Civ.App., 191 188. See also: S.W. 6, 1953. March Aldana, Tex.Civ.App., Aldana v. 42 S.W.2d Burt, dis.; Tex.Civ.App., Manire v. er. April Rehearing 3, 1953. Denied er. ref. S.W.2d . of the statute will not be The terms especially embrace those not
extended therein, though even reasons
named equally them embracing existed, per including those which expressly designated. Newton
sons Newton, 14 S.W.
Robertson, Jackson, Payne, Lancaster Miller, Dallas, & Walker and Orrin all of appellant. Dallas, White & Yarborough, appel- lee.
“DIXON, Chief Justice. Fountain,
This suit was filed E. Lottie plaintiff and surviving widow of James Fountain, deceased, against Continental defendant, Casualty Company, on a sickness policy and accident to which was attached covering rider in case of benefits solely through death effected accidental means.
Sickness benefits under the policy have paid already been in contro- versy. Only the death benefit feature is involved this suit. provision particular policy
covering benefits is as follows: “This provides indemnity for policy life loss of * resulting bodily injury ef- * * through accidental means fected *. policy Injury in this bodily as used means injury which the sole cause of the loss is effected accidental policy this in force.” means while Co., Tex.Civ.App., 110 S.W.2d re- ance tried The case was (wr.dis.). find- plaintiff, favor of a verdict in turned 'by ing bodily injury (1) that a exception attorney of an With 7, 1949, was M. Fountain attor- reasonableness of testified *3 3, death on Dec. cause of his the sole fees, of only witness behalf ney’s the the time of his (2) he was not at is a was Here herself. the cancer; (3) and with $600 afflicted is- summary testimony touching the of her attorney’s court fee. The was a reasonable mar- and were sue before us: She deceased $2,280 plaintiff for rendered hus- together in 1922 had ried and lived jury verdict. based from their mar- and time of band wife death; to his he a minister riage was appeal relied on first three 'Church; was the Colored Methodist she upon by appellant, who defendant was rainy-night'in with him on October court, the effect that are all to trial arm; on he his he had to when broke drive support jury’s to is no evidence there Houston, time driving to about two hours required make to verdict. We therefore accident; high of the from scene due analysis testimony. all a careful delayed they getting were water Jef- us The record before’ shows Hospital 1:00 ferson Davis until about night the deceased morning; hospital a o’clock at Fountain, wife, accompanied .by his specialist put' a his broken arm in Fountain, driving his Lottie appellee, cast; parts any know she didn’t other Driv- Buiclc Dallas to' Houston. injured, body his that were his besides bad, ing to a conditions were due down- arm; up he suffered from his rieck into and glare pour headlights rain and head; point 'his his entire arm from near a cars. Some distance north his shoulder to over his hand was covered right deceased allowed the wheels Houston cast; went he home afterward and slip pave- edge car to off the of the his weeks, stayed home for during six steering In struggling ment. with his up time he was and did about the house but pull pave- car wheel to his back onto the work; any do end of six week's ment, left his arm was fractured near out-patient hér husband went as St. shoulder. He drove on to and Houston Hospital re- Elizabeth’s have the cast early morning next went Davis to Jefferson moved; physician, a colored woman Dr. Hospital placed where his arm was a Johnson, employed by Clemmie had been specialist. a bone At the cast end of had her husband and interceded to him get weeks, six when the came to time remove Hospital; St. Elizabeth’s Dr. .to Johnson cast, employed Dr. Clemmie practicing years had been a number of who removed the first cast and Johnson hired; only her doctor husband had placed on the fractured In another arm. Dr. removed the first cast and week removed about a the sec- cast, placed his re- arm second placed sling. cast and the arm in ond a week; on him about a his trained arm was 1, 1949, Dec. deceased entered St. About put hospital he sling; then entered the Houston, Hospital in where on Elizabeth’s patient full time about December died. he Dec. then; very he ill she test, they perhaps they made a urine but was the cause his What death? trying get to .wait for him to better prove undertook to Plaintiff him; something for he De- to do died on effected of her husband was 3,. 1949; any he cember never did work 7, 1949 when arm of Oct. his the accident hurt; prior after he he accident struggling he while was to steer broken appeared healthy; to be her highway. onto the his automobile back man; he strong bodied could do the death he recover benefits it was order person; he work then most more her to establish necessary for conten pounds; kept over 200 he their weighed preponderance of evidence. tion mowed; yard dug in flower beds and large Travelers Assur- International Worley v.
34i Beal; they think housework; Dr. P. W. didn’t never helped her with had cast be removed because the frac- or accident before should any serious illnesses had healed; that; seem to make prior ture didn’t to have to the accident she they put patient any complaints out of him about comfortable heard more body; spica portions hanging he had normal on him of his cast instead arms; X-ray she wearing; as far as his hands and cast he had been films use tell, his nothing wro’ng Harry there with could sent'to 1949.were Nov. taken accident; arm in- left he would Fishbein, roentgenologist, ventured hand, neck by rubbing diagnosis pathological dicate his of a fracture and K.U.B., head, there; pain film, that he suggested kidney- his. head; request neck rubbed his study; patient *4 urinary-bladder return- the accident; also, in never the film; had done that before day ed for next the K.U.B. years the he driven a had all car she skull; reports lateral the view of the complain never heard him of about either they essentially negative; those films head; arms his or neck and she and-her his showed no of metastatic bone paid sick- husband had been more than one lesion; kidney indefinitely left was out- n policy; ness claim this same Dr. lined, slightly larger right; than the two under day most’every saw her husband days patient experienced later the .chills Johnson death; for before she about two weeks his fever; urinalysis infection and showed (plaintiff) had not talked to Dr. responded therapy; well sulfa to Johnson about her illness his husband’s before began patient in less than a week to the death; following death Dr. complain pain .his in lung of both lower fields Johnson cancer; thought said she (plain- he had she cast; and of discomfort of the seven tiff) of not talked to doc- the other days spica the cast was and removed County tors that treated him either at the placed sling; complained arm he of Hospital or at Elizabeth’s and not pain St. has chest, by in his aggravated cough attempted to them talk to her hus- productive sputum; and a cough .since band’s death determine his by codeine; patient of relieved became death; Dr. told her repeatedly be- uncooperative irritable and would not Johnson and. a fore her husband’s death that she did hospital X-ray return to for chest illness; know the cause his his after complete work-up case; X-ray on his Dr. said she it osteoporosis Nov. 1949 still showed cancer. region 30th, shaft; of humeral on Nov. Dr. defendant, brought deceased to the behalf hos- On of the there were pital out-patient; X-ray as an witnesses, a chest physicians. two them both of taken, arm; also a recheck of the showed Houston, the de- Clemmie Johnson area of right destruction of sixth rib physician, deposi- by own testified ceased’s soft tissue extending tumefaction into the response interrogatories. tion written cage; thoracic there was no doubt from substance, this what she testified: osteoporosis patient amount of that the doctor, duly medical She is a licensed to figure process; had a mitotic the films Texas, practice Degree with an M.D. re- Fishbein; were taken to Dr. after practiced 1946; consulta- ceived Houston June him, family tion with was told July 1948; for since she knew deceased patient’s condition one death; malig- about three months before his at- physician nancy; him as and him was the wife’s desire tended saw it day told; patient’s every he from Nov. 1949 until her husband con- died; she worse first sent him St. Elizabeth’s dition became and he admitted X-ray hospital Hospital get an of his arm when to the on December he Leader, him go urologist, it was about time for to was seen an back urinary incontinence, Hospital Davis to have cast his Dr. A. Jefferson removed; Glassman, specialist, wouldn’hgo back a bone his frac- Jefferson ; work-up because further the. case Davis he said internes weren’t ture him; consultant, postponed by urologist called in until lower fair she tissue, primary bone cleared noma is found-in could be urinary pathology tract originated pyelitis, site of the cancer must suffering'from acute up; he was ' spread through the blood the kid- elsewhere and inflammation that means to the bone ; died De- stream metastasized itself and' neys rapidly weakened structure; pa- de- circumstances that the she believed cember carcinoma, case, al- he would scribed to him in this generalized tient died was; say patient’s caused type it that the death was what though she did not know accident; how to de- he did not see post mortem had not done squamous patient’s cell death could have been caused termine the site fracture; simple possible for a carcinoma; cancer a it there was a believed arm, get injury the arm man to to his kidney; the fracture of arm, fracture, had break to his of such a there nature being pathological re- complications might frac- which would before arise to be cancer that site ture; death; laboratory proof the sult in his carcinoma generalized she had no kidney, up lung showed type cancer but believed cancer involved rib, sign- primarily kidney, so she and had metastasized it over arm, report hypernephroma; stage in the the death was an advanced ed *5 time; cancer and filled out death certificate incurable at that would she had directly possible leading to not have been for such a cancer showing the condition carcinomatosis; generalized have commenced after the fracture on hypernephroma; stage 1949 and advanced to such a antecedent 3, 1949, directly say Dec. as to have resulted she could not the fracture patient; frac- the death of caused the death of the M. Fountain. James opinion ture in was not the sole cause The Dec. signed death certificate was - death; plaintiff of his she never told she 5, 1949, by physician, Dr. C. deceased’s wrong didn’t know what was with the it, copy E. A certified Johnson. patient; patient she didn’t tell Carroll, W. D. Registrar, State was in- proof had cancer until definite there was troduced evidence. This death certificate X-ray as shown in the of Nov. 30th. gives age years con- deceased’s The other witness for defendant was following tains the entries: Hurt, physician. Dr. Leonard Dallas He Directly “I. Disease or Condition deceased, himself had never seen James Leading to Death explained laymen’s Fountain. He M. * * (a) Generalized carcinomatosis language meaning of some of the tech- Antecedent Causes deposi- in Dr. nical terms used Johnson’s * * * “pathological tions: a fracture” is frac- * * * Hypernephroma (b) that has been ture that occurs Conditions Significant Other “II. disease, very previously by some weakened contributing to the death (Conditions the same as a board is broken that much condi- to the disease or not related but has infiltrated termites or wood been death) causing tion means, rot; “generalized carcinomatosis” terms, lay cancer somewhere in of left arm Fracture (1) body parts has been carried debility.” Generalized (2) itself; body reproduced and there resume summarizes foregoing tissue; loss “osteoporosis” means of bone in the record all the substance malignant “hypernephroma” tumor bearing find been able we have process” kidney; figure “mitotic death of caused the what question cancer; metastasis” “bone reference Fountain. growth, that some a cancer its means testimony, which own has come from some Plaintiff’s equivalent, case, out make times body grow- on to and has started part of relied illustrate, quote we To bone; squama very indefinite. there are no ing in the cells tissue, squama excerpts: cell few in bone carci- a * * * “Q. many your see “Q. How times did she . (Direct. Examination) any, husband between hired her body, if the time he. parts his What other A; Well, and the time know of his death? I don’t besides ? A. injured, his arm every day most she would in. any. come “Q. Well, You never did talk' to Dr. Johnson “Q. you know whether or do body your about parts illness? Before of his husband’s A. he suffered with other or since? A. Yes. following that? “Q. No, parts body suf- not be-
“Q. of his did he Before or since. A. What (Emphasis up supplied.) into From his neck and fer from? A. fore. his head.” “Q. you Have talked to her since? A. After his death she talked to me. excerpts testi- Here are question whether mony pertaining to the “Q. you your She at that time told had had illnesses carcinoma, husband didn’t she ? A. the accident: After his death? “Q. Lottie, accident, previous to this “Q. Yes. A. What is that? up you him until time married from the “Q. thought She Cancer. A. Cancer. highway, injury down there on the it was cancer. complaints him you heard out of “Q. you Well have discussed the state- No, body? sir. any portion A. put on the death certificate “Q. some- just Other than little cold or her, you No, not? I didn’t A. thing that? A. Thafs all.” like discuss it with She told me she her. Lottie, (Cross “Q. you Examination) (Redirect) it was cancer.” *6 had some other your and have husband “Q. Lottie, you been if have asked claims sickness under this Continental you told from cancer died not? Casualty Company policy, you have you you she told that she said * * * supplied.) (Emphasis AA. few. you tell ? did. When did she thát “Q. paid you Have been for all those sick While he was or after he died? A. you made before? A. claims that After death. * * * right. That’s “Q. And while he was sick what did “Q. And under bene- it is this sickness you she tell about told me it? A. She you before, made claims fit that have * * * she didn’t know. She A. re- right? For the broken arm and that A. me peatedly told that she did not know for influenza. wrong what was with the patient. “Q. You have had other claims (Emphasis supplied.) before influenza, you besides not? A. have The statutes of the State Texas know Not that I of. reference to death certificates ex “Q. don’t know but You provide “any copy pressly that such prior you one claim that made to this? A. ** *, properly record when many prior 1 know how claims don’t Registrar, certified the State shall be A claims the broken this. few prima facie evidence all courts and arm. places of the facts therein stated.” Art. “Q. few, A but more A. than one? 54a, Rule Ann.Civ.St. The Vernon’s (Emphasis supplied.) right.” That’s case, duly death certificate in this certified excerpts Here are testi- by Registrar, the State recites that subject mony of whether she had directly condition leading disease or to Dr. before and after her talked generalized carcinomatosis, death was regard death in husband’s to his illness very cancer. Thus at the that outset cause of his : and the with a situation we are confronted wherein
“Q. you your Was it husband defendant has introduced evidence Well, law hired Clemmie A. a matter of establishes a defense Johnson? my cancer, yes, it was due to unless it is husband. of death rebut- 344 Hiles, expert duce ‘Neither witnesses by plaintiff’s Clark v. death. evidence.
ted
356;
jurors may
nor
loose in
Thornell v.
be turned
S.W.
conj
may
Co.,
to what
Tex.Com.
domain of
ee-ture' as
Missouri State Life Ins.
by possibility
given
ensue from a
state
App.,
no evidence
249 S.W.
find
203. We
* *."
S.W.2d
facts. *
that cancer
in the record
effect
[110
.to'the
also American National
Ins.
plaintiffs
See
cause of the death
1205.]
Tex.Civ.App., 70
Briggs,
Co.
S.W.2d
husband
.
Glass, 29
Maryland Casualty Co. v.
We believe that
the case of Joske
Tex.Civ.App.
S.W.
Irvine,
1059, 1063,
Tex.
44 S.W.
Co.,
Aetna
Ins.
Tex.Com.
Robinson v.
Life
lays down the
applicable
rule
to this case:
App.,
900.
276 S.W.
“ * * *
duty
to in
court
It will be
that nowhere
observed
verdict,
struct a
though there
slight
testimony
.any
the record
there
direct
testimony,
probative
if its
force be so weak
cause
accident was the sole
only
that it
raises a mere surmise or sus
We are
M. Fountain.
picion
the.death
of the existence
sought
fact
may
some
mindful that the
of death
established,
to be
testimony,
legal
times
inferred
from circumstances.
contemplation, falling
‘any
short of being
* * *."
in order
in the
at bar
evidence’;
However
See also
Drug
Waco
must
reach
such conclusion we
base
Hensley,
Co. v.
Tex.Com.App., 34 S.W.2d
upon
We
an inference
must
inference.
testimony
(1) infer
direct
The case of Worley v. International
7, 1949,
time of the accident on Oct.
Co.,
Travelers
supra,
Assurance
involved
healthy man. But
strong
was a
policy
an insurance
like the one now be
stop
go
must
fur
we cannot
there. We
us, providing
fore
for death
benefits
(2)
ther
infer
since he was
bodily injury
death be caused from
ef
accident
healthy man when the
oc
fected
accidental means.
curred,
the accident
it follows that
must
The deceased
fallen down
some cellar
the sole cause of his death.
been
injured
por
stairs
his head and other
piling
process
This
one inference
body.
tions of his
About
three months
*7
permitted
under
law.
another
is
hospital
later
in
engaged
while
he
Co.,
Texas Pac.
& Oil
140
Wells
Coal
v.
hospital
scuffle
violent
with two
attendants
660; American
Tex.
164 S.W.2d
Cas
which he
in
was thrown
fell
Morrison,
ualty
Co. v.
Tex.Civ.
& Life
Eight days
floor.
later he died. -Medical
App.,
Mary
161
Brown v.
S.W.2d
testimony
showed that
to his death
Co., Cir.,
Casualty
8
F.2d 159.
land
55
deceased was
afflicted
cirrhosis of the
,
Casualty
Life Co.-v.
American
&
Morri
syphilis
liver and
which he
for
had been
son,
which, like
supra, was a case in
expert
There
also
treated.
medical
now,
on
one
burden was
us
before
testimony
injuries
as
that
such
ac
those
n
death re
prove
that
insured’s
cidentally
sustained
deceased could
purely' accidental means.
sulted
from
permit
Space
will
of a
cause death.
Judgment, was rendered for the.
analysis
in
of the evidence
more detailed
n
jury
verdict.
Court
Civil
Worley
The trial
case.
-court- sus
Appeals
reversing
rendering
in
motion
tained defendant’s
withdraw
judgment, said
S.W.2d
trial court’s
[161
jury
-rendered
case from-
797]:
affirming
judgment,
In
defendant.
for
“ * * *
necessaij' to
Appeals,
would be
fur-
Worth Court
Civil
it
the Fort
Galveston,
falling
that
Supreme
presume
Court
ther
quoting our
Powers,
then,
Ry.
Even
due
or ill health.
A.
to sickness
& S.
Co.
H.
necessary
indulge a further
said:
“It was not
it
'be
tó
105 S.W.
would’
‘
solely
that she
presumption
issue raised
died
nor
show
proven
-
injury
an-
result
from a
result
received
that death could
fall
ing
insured,
authority first
by the
fall.
said in the
cited
that received
nor
As
such
Bettis,
pro
Ass’n v.
possible
such a
Travelers
fall to
it was
[International
that
point.
sider that
‘Neither
case
In the
S.W.2d
Coxson
Tex.
1040]:
case the
proof can be left
ultimate fact
issue
pleadings nor the
was whether
pre-A
guesswork.
good
insured was in
health
time
open
conjecture and
at the
applied
upon
sumption
policy
cannot rest
a fact
for and obtained a
life
of a fact
”
Testimony
lay
presumed.’
insurance.
witnesses was
support
held
jury
to be sufficient to
ver
Co., supra,
Maryland Casualty
Brown v.
notwithstanding
testimony
dict
medical
burden
in which the
was also
case
contrary.
already pointed out,
As
beneficiary
prove
insured’s death
the case before us the
state
health of
solely
accidental means.
resulted
deceased' at
the time of the accident
injuries
claimed
Plaintiff
that
merely the first
inference we are asked
violently
down in bed
pushed
when he was
going
to make before
on to conclude
death.
were the sole cause
deceased’s
way of a second
inference
the acci
for defendant.
directed a verdict
The court
dent was the sole cause of deceased’s death.
judgment'
Circuit
affirming
In
say
Even if we
that the evidence
here
Appeals
:
F.2d
Court’of
said [55
161]
support
sufficient
finding
that Fountain
upon
proof
her.
“The burden
healthy
.1949,
on Oct.
we
favorable
True,
entitled to
she was
in, probative
say
must
wanting
fairly
might
men
as reasonable
inferences
force to show the cause of
death about
testimony,
infer-
but such
(cid:127)draw from the
fact,
in
two months later.
it is almost
upon facts and not
based
ences must
injuries
conceivable that the
* * *
n upon
received
can
nor
inferences.
have caused the
the accident could
n a verdict
permitted to base
robust, healthy
strong,
of a
man.
guess or surmise.”
mere
'
Pledger
Business
Plaintiff also cites
defendant failed
out that
Plaintiff
Tex.Com.App.,
Ass’n, etc.,
Men’s Accident
testimony from
produce
doctors
glance
At first
228 S.W.
by Dr.
Houston who were consulted
John
might
case
seem to hold that certain evi
testimony
produce the
son. Defendant did
support
finding
dence was sufficient to
Johnson,
physician, Dr.
own
deceased’s
means,
exclusively by accidental
of death
cancer, and
testified that deceased had
entirely
syllabus
is not
clear.
for the
No. 1
opinion
in her
the fracture was not
However,
syllabus, if it can
in
be so
Also, defend
of his death.
the sole cause
terpreted,
is inaccurate. What
the court
certificate,’
put
ant
evidence the
n duly
really
is that the case should be de
holds
Registrar,
certified
the State
policy
cided on
basis of a clause
law,
prima
aas matter of
facie evi
provides
payment of
death bene
generalized
dence
carcinomatosis
pro
fits
accidental death —which
in-
condition di
(cancer) was the disease or
*8
require
vision did
that
:not
accidental
rectly leading to death. This was further
have been the sole
the
should
cause of
way
producing
in the
of
evidence than de
ap
erroneously
The trial court had
death.
duty
any
go.
fendant was' under
to
plied
provision
by-laws
in
a
the
the As
of
by
plaintiff
prove
pre
burden
a
was on
to
death,
only
which
sociation
awarded
benefits
ponderance of
evidence that the death
the
exclusively by'
were caused
acci
solely
was
of
M. Fountain
effected
Jámes
The court
out that
dental means.
means;
accidental
the burden was not
n ondefendant
phrase “accidental death” as
in the
used
any
plain
disprove
part
of
the-.phrase
policy,
resulting
“death
.arid
&Life Accident Co.
Universal
tiff’s case.
by
as used
accidental means”
Beaty, Tex.Civ.App., 177 S.W.2d
v.
meanings.
different
The court
laws, have
Co.,
Metropolitan
Mo.
Layton
Life Ins.
v.
said:
App.,
n our contingency conclusion that to the leads Court, con Supreme support her death, rather was accidental against insured judgment of the trial tention that n court means.” caused accidental than-death not con should affirmed. We do be film, suggested K.U.B. that appeal fracture a point on fourth Defendant’s study.” Plain- kidney-urinary-bladder a attorney guilty of plaintiff’s is that says tiff testified as to that jury that he argument improper to the Johnson plain- her over what Fishbein told of effect their jury of the informed the objection testimony was that It tiff’s such Special 1. Issue No. answer hearsay. record of such W'e find no exception plaintiff’s that shown in bill of objection plain- Nor in the record. does policy, picked up insurance counsel cross-assign tiff in brief the court’s evidence, her which and read ruling. does 'which adverse The record jury injury, show the definition of. plaintiff’s that court sustained opin trial copied paragraph this third 3, exceptions 5, deposition, said, attorney plaintiff’s “It’s and. ion. Then exceptions copied in the but these are not got way.” Apparently the to be that at record; way for us to know so there no torney discussing document which Any- answers were attacked. had and was been introduced error, way, error, if harm- it 'subject fair of comment. We>overrule away nor less for neither added to took point improper argument. defendant’s as to plaintiff’s from the to make out burden Martin, Russell 49 S.W. testimony was offered de- case. The 2d Co. Commercial Standard Ins. prove seeking to that died Shudde, fendant Tex.Civ.App., 561. 76 S.W.2d necessary for de- cancer. It was. evidence in Because we believe testimony. It fendant offer sup matter of law fails record may disregarded affecting without judgment port and the verdict plaintiff’s injuries burden to show that the thereon, based court the. cause judg be reversed court the trial will death. Fountain’s defendant ment rendered nothing. plaintiff’s points on re take of. Another hearing testimony is that Dr. Johnson’s Reversed and rendered. gave opinion her to what she Rehearing. On hearsay. death, caused Fountain’s was also rehearing motion agree, wrong, We do not but if we are opinion in our statement complains of the error harmless for the reasons - injury, morning after next repeat above stated. We burden placed in arm “was Fountain’s any part disprove on defendant to plain- specialist.” It was plaintiff’s cast case. .testimony Her testified. tiff so herself We studied the statement of facts found in the will be State- to that effect very carefully this find no case we Facts, 23 and page lines if we remand the reason believe that complains of- our statement fully Plaintiff -also will be more been practicing that “Dr. developed. .with Plaintiff is satisfied - years.” Again, relying we were testimony number that de- Dr. Glemmie Johnson’s testimony as pláintiff’s' own shown in cancer. In her for re- ceased motion Facts, page lines 19- point Statement hearing says should she herself testified 21. Dr. developed by obtaining testi- fully more *9 graduated from medical school mony issue Houston doctors. An June Houston, practiced in 1946, and had Texas as to de- jury whether submitted July 1948. record does not in- since with cancer at the time afflicted ceased practiced whether she had elsewhere dicate answer of death. The than in Houston. Consequently plaintiff. her favorable to develop- helped by further complains will not case further Plaintiff fol- not reverse the point. did We opinion: lowing in our statement “The ground that X-ray films taken Nov. trial were sent court’s We have cancer. did not Fishbein, did or Harry roentgenologist, to Dr. no evi- there was because reversed tlie diagnosis- pathologicál who ventured of a Fountain death of dence that the accidental was effected the in- solely as result of
means —that juries in the accident She plaintiff’s burden.
1949. That was even relieved of that burden
would not be favorably the Houston doctors testified claim of cancer. on defendant’s
All motion for considered and
rehearing have been
overruled. rehearing
Motion overruled.
ANDERSON et al. MARTIN ux. et
No. 6284. Appeals Amarillo. Texas.
Court of Civil 16, 1953.
March April
Rehearing 13, 1953. Denied