80 S.W.2d 771 | Tex. App. | 1935
By this suit Mrs. Bessie Woody and minor child, LeRoy Woody, seek judgment against Metropolitan Casualty Insurance Company for compensation insurance on account of the death of C. D. Woody, husband and father, respectively, of the claimants. It was alleged that deceased sustained an injury on or about June 27, 1933, while in the course of his employment with Mitchell-Stewart Construction Company, for whom said insurance company was the insurance carrier. It was alleged that the injuries resulted in traumatic pneumonia, from which Woody died. More particularly, the nature of the injury was described as resulting from the attempt of the deceased and eight or nine other employees to load upon a truck a joint of 8-inch pipe, approximately about 40 feet in length. One end of the pipe was placed upon the truck, and one employee stationed to hold it in place while the others lifted the other end, during which operation, when the pipe had been raised several feet above the ground, the end upon the truck slipped off and fell, striking the ground with great force, causing the pipe to be jerked out of the arms of Woody and his coemployees, and suddenly jarring upon and against the side of the said Woody, seriously injuring and bruising his side, and injuring him internally.
The case was tried with a jury, to whom was submitted special issues, and upon the answers to which, favorably to the claimants, judgment was accordingly rendered for them. The insurance company has appealed.
The appellant first contends that, disregarding certain testimony as being hearsay,
We are unable to ascertain from the statement of facts what time of day it was when the accident in attempting to load the joint of pipe occurred. It is inferable that many hours elapsed before the deceased made the declarations accredited to him, and of which complaint is made. In this state, contrary to the rule obtaining in some other jurisdictions, some subsequent declarations of an injured person as to how an injury was received are held admissible as a part of the res gestee. In International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 1040, 27 Am. St. Rep. 902, the Supreme Court, after stating the general rule, further said: “Another rule, applied in many of the American courts at least, is to admit as parts of the res gestae not only' such declarations as accompany the transaction, but also such as are made under such circumstances as will raise a reasonable presumption that they are the spontaneous utterance of thoughts created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation or design.” Under this enlargement of the general rule, which it was recognized in the Anderson Case had been previously sanctioned by the courts of this state, the subsequent declarations of the injured party as to the fact and manner of an injury has from time to time been held admissible, A careful examination of all the available decisions, however, shows that such declarations have been admitted only when it was shown to be a very short time after the injury, usually but a few minutes. Only two or three times, so far as . our investigation shows, have declarations been admitted which occurred as long as thirty minutes after the injury. The longest time that any such declarations have been admitted (except where there was intervening unconsciousness, which is to be excluded) was in Dallas Hotel Co. v. Fox (Tex. Civ. App.) 196 S. W. 647. In Norwich Union Indemnity Co. v. Smith (Tex. Civ. App.) 3 S.W.(2d) 120; Id. (Tex. Com. App.) 12 S.W.(2d) 558, and Employers’ Liability Assur. Corporation v. Flint (Tex. Civ. App.) 14 S.W.(2d) 1046, the declarations were made within an hour. In the Fox Case, the declarations were made about one hour after the injury. It is our conclusion that neither precedent nor reason justifies admission of the declarations in this case. On the contrary, many authorities support the proposition that they cannot be regarded as part of the res gestas and were hearsay, and, therefore, incompetent. Lumbermen’s Reciprocal Ass’n v. Adcock (Tex. Civ. App.) 244 S. W. 645; McDowell v. Security Union Ins. Co. (Tex. Civ. App.) 10 S.W.(2d) 782; Texas & N. O. Ry. Co. v. Crowder, 70 Tex. 222, 7 S.W 709; St. L. & S. W. Ry. Co. v. Gill (Tex. Civ. App.) 55 S. W. 386; Missouri, K. & T. Ry. Co. v. Tarwater, 33 Tex. Civ. App. 116, 75 S. W. 937; Ft. Worth & D. C. Ry. Co. v. Stone (Tex. Civ. App.) 25 S. W. 808; Wall v. Berger (Tex. Civ. App.) 212 S. W. 975; Huth v. Huth, 10 Tex. Civ. App. 184, 30 S. W. 240.
This testimony being hearsay, and for that reason incompetent, it must be excluded from consideration in determining if there was any evidence sufficient to raise an issue of fact whether deceased received the injury (as alleged) in the course of his employment. See collation of authorities upon this point in United States Fidelity & Guaranty Co. v. Inman (Tex. Civ. App.) 65 S.W.(2d) 339.
We next consider whether, excluding consideration of the incompetent testimony,
We have had very little aid in the way of precedents in reaching this conclusion. The only' decision we have found in point applying the principle is the old case of Barrow v. Philleo, 14 Tex. 345. In that case plaintiff sued for damages to goods alleged to have been received under a particular contract of shipment. He had the burden of proving that the goods which were shipped were the same that were damaged. There was no direct evidence of this fact. The court said: “If the goods damaged were other than those enumerated in the receipts, it devolved upon the defendant to show the fact, or at least to show that he had hauled other goods for the plaintiff.” Manifestly, the only reason it would in such case devolve upon the defendant to show that the goods injured were not those described in the receipts, or, at least, to show that he had hauled other goods for the plaintiff, was to destroy the permissible inference that the goods contracted to be delivered were those delivered in a damaged condition. In the instant case, if evidence had been produced to show the existence of another circumstance calculated to produce the injury in question, but nothing to favor the inferencé that it did so over the inference that it was caused by the pipe, the jury would have had no right to infer that the injury was received from the falling pipe. If an' inference of facts consistent with no legal liability is just as valid as an inference of facts legally resulting in liability, then the jury is not warranted in finding the facts of liability as an inference. K. C. So. Ry. Co. v. Carter (Tex. Civ. App.) 166 S. W. 115; Lutgen v. Standard Oil Co., 221 Mo. App. 773, 287 S. W. 885. But in the absence of evidence of any circumstances to account for the injury other than the falling pipe, and the great unlikelihood that in the same day two probable causes of the injury would have existed, it- is our conclusion that the jury were warranted in inferring the ultimate fact of injury from all such facts and circumstances in evidence. The court, therefore, did not err in refusing to give a peremptory instruction.
The inference, however, was not a necessary one. Therefore, the error of the court in refusing to strike out the evidence of hearsay declarations of the deceased is not affected by this conclusion.
We are also of the opinion that the argument of counsel to the jury to the effect that appellee had undertaken to prove by var-
There was no error, we think, in the court’s failure to define the terms “cause” and “natural.” These are terms of ordinary signification and require no definition. Texas & P. Ry. Co. v. Short (Tex. Civ. App.) 62 S.W.(2d) 995.
Other errors assigned will probably not occur upon another trial, and we, therefore, deem it unnecessary to notice same.
Because of the error, mentioned, we conclude that the judgment of the court below must be reversed and. the cause remanded, which is so ordered.