*1 against claim party pro such third before
ceeding with his claim compensation The TRANSPORT INSURANCE insurance, destroyed the insurance carri COMPANY, Appellant, and, right therefore, er’s to subrogation right to recover compensation was lost. Q. CAMPBELL, Appellee. Jimmie Argonaut Warneke v. Company, (Tex.Civ.App. S.W.2d 834 Paso — El No. 17292. 1966, n.r.e.). writ ref’d Texas, Appeals Court of Civil Prior to the 1973 amendment to Section (1st Dist.). Houston 6a it provision contained no which could be construed as burdening the insurance carri 12, April 1979. any part with of the compensation claim Rehearing May 17, Denied 1979. attorneys’ ant’s fees. the contrary, On insurance company was entitled to recover
its expenses recoupment incident to includ
ing a reasonable attorneys’ fees. Dover v.
Casualty Reciprocal Exchange, 410 S.W.2d
306 (Tex.Civ.App. Amarillo, 1966, no writ — hist.).
Before the enactment of the 1973
amendment, the Reliance Compa
ny had an contingent inchoate or right
recover negligent parties third all
sums that they might be liable to pay to
Chester Gilson as compensation workmen’s
payments together with the reasonable fees
required to enforce liability of such parties.
third right This had accrued be
cause of payments of workmen’s com
pensation benefits to Gilson Sep
tember right clearly This came
within provision of Article Section
3b supra, providing inchoate, that “no vest
ed, matured, existing or other rights .
shall be in any way by any affected of the ” amendments herein made . . . The
trial court was not authorized charge
insurance company’s portion damage of the
award with the attorney’s fee. of the trial court is re-
formed to provision eliminate the awarding fees,
attorneys’ and as reformed is af-
firmed. PEDEN, JJ., sitting.
WALLACE also *2 Stone, Giessel,
Talbert, Alice Giessel & Houston, appellant. for Hennes- Hennessy, Edward J.
Thurlow & Houston, appellee. for sy, COLEMAN, J., PEDEN C. Before DOYLE, JJ. COLEMAN, Chief Justice. appeal from a en-
This is an awarding Q. Jimmie tered on a verdict Campbell permanent disability total Compensation Workers’ benefits under the Company Transport Act. The that a contends that there is no evidence head blow to the back of sus- employment was tained in the course of his incapacity total producing Campbell to sustained due subsequently (hemiplegia). a stroke long haul truck driv- Campbell was a Line. Rose Truck On employed by J. H. the Rose drove into October 1973 he Montebello, Cali- Truck terminal located attempting to attach fornia. While he was he was trailer the tractor which driv- flap brack- that the mud ing, was found would have to be ets attached to his tractor removed. remove the was directed to squatting position in a
brackets and while
holding
a nut
using a wrench to remove
bracket,
causing
slipped
him
the wrench
bang the back of his
fall back and
against
dolly.
the trailer
He suffered
bump
to rise
painful blow which caused
head,
of the blow did
the force
on his
but
not lose con-
He did
not break the skin.
the incident and
reported
He
sciousness.
flaps. At
the mud
continued to remove
morning of Octo-
on the
about two o’clock
terminal.
ber
he left
the Montebello
he then drove
Campbell testified that
Rialto, California,
of some 50
a distance
stop
a truck
drove into
miles where he
daylight when
just
fuel.
It was
before
he was
At
time
arrived
Rialto.
difficulty, but because
having
physical
no
rest. He secured
was tired he decided to
to bed.
stop and went
a room at the truck
During
neurosurgeon, for
consultation.
morning
About ten
he woke
o’clock
hospital
Campbell was ex-
stay
in the
up, took a shower and shaved. At
Cover,
specialist in in-
slight
he had a
headache
had
Doctor
which
amined
medicine,
persisted
bumped
employed by
since he had
head.
ternal
who was
Company.
he was
sure that he
Transport
headache while
drove
from Montebello.
October
Cover examined
*3
pay
He stated
didn’t
much
that he
“all that
Campbell
Thereafter Mr.
was
attention” to it.
to the
Administration
transferred
Veterans
again by
Hospital and was not seen
these
cleaning up
After he finished
he took two
doctors.
aspirin for the headache and
cleaned
then
his
up.
truck and fueled
He went into the
shown
Where the circumstances
restaurant
and ordered
While
breakfast.
it is
by
are such that
reasona
the evidence
he
eating
was
his breakfast he noticed he
job-related
ble
incident
to believe that a
was
of his
losing control
hand.
remem-
He
failure,
a
precipitates
physical
a
find
bered
dropped
that he had
a bundle of
producing
the
ing that
incident was a
cause
clothing when went from
to the
his room
disability
supported by
is
plaintiff’s
the
leg
truck. While he was
his
paying his bill
question
the
determining
evidence.
gave way
got
he fell to
He
the floor.
reasonableness,
given
must be
consideration
up
driveway
pay
and went across the
ato
interval
the incident
to the time
between
phone and
his
called mother to tell her that
physical
failure and whether the occur
he was going paralyzed on his left
He
side.
competent
produce
rence
such a result.
then
the
stop
walked to
door of the truck
Employers’
Texas
Baird v.
Asso
again
get
and fell
up.
and was unable to
ciation,
(Tex.1973);
177 speculative conclusion. The circumstances sion. Two of that the the doctors testified of such at to plaintiff gave history previous relied on must be a character hyper- satisfactory convincing. giving reasonably tension. The denied be they equally must not be information to the doctors. Doctor Lutz At all events patient testified that his examination of nonexistence of the ulti consistent with the suffering hyper- proven revealed that he was mate fact. Where the circumstanc tension and that he treated him for that with either of two es are consistent theories hospital. nothing condition while in the and there to show that one rath is correct, probably er than the other then There testimony is medical which can be Loftin, proven. neither Baker v. 222 evaluating considered in the circumstantial (Tex.Comm.App.1920, judg. ap 195 S.W. evidence necessary relied to establish a proved); Republic National Life Insurance chain of causation from the blow on the Bullard, (Tex. Company v. 376 head to the condition Doc- e.); Civ.App.-Houston, writ ref’d. n. r. Po tor Lutz hypertension testified that (Tex.Civ. Quinius, lasek v. produce disease, known to vascular harden- App.-Austin e.) writ ref’d. n. r. arteries, ing of the and increases the risk of reasonably presented The facts do not strokes. He testified that there are numer- plaintiff’s inju- lead to a conclusion that the ous hypertension proba- causes of but ry was caused the blow the head bly in ninety percent of the cases the cause injury rather than that caused is unknown. He testified that blunt trau- hypertension. experience Common ma body could be the cause of a *5 knowledge in the area under consideration blood clot but that the most usual cause is speculative and unreliable and the medi- atherosclerosis. A blow to the head could testimony strong cal and uniform to the tear a might blood vessel which result effect that to the head was not in the blow major either hemorrhage. or a minor reasonable medical a factor Blood surrounding would leak into tissue hemiplegia. the causation of the strong enough and if the tissue is it would be localized there and absorbed or altered Since there is no evidence that the blow chemically replaced by and a scar. If the to the head caused or contributed to the sufficiently tissue is not strong to contain disability plaintiff, the of the trial court blood, the it would leak into other struc- overruling erred in defendant’s motion for might tures which increase pressure the directed verdict made at the close of all the within the pressure brain. The increased judgment evidence. The reversed might hemiplegia. lead to Doctor Lutz also appellant. is rendered for testified that a hemorrhage resulting from Rehearing On Motion injury usually develop tends to with
headache, vomiting, and dizziness before the On reconsideration of evidence the development of a hemiplegia. we have that we were in error in concluded reversing rule of v. this case. The Garza There is testimony no medical suffi Alviar, (Tex.1965) must be cient to support finding jury the of the applied only can the evi and we consider relationship' there was a causal between the tending support dence and inferences blow on hemiplegia. the head and the disregard evi jury findings, and must all assessing sufficiency of the circumstan contrary. dence and inferences to the tial evidence to support the verdict we are general agreed mindful of the rule that witnesses The medical evidence, establish a fact plaintiff’s hemiplegia circumstantial exact cause of pro circumstances relied on must have sufficient pinpointed could not be because bative force sufficient to testing performed. They agreed constitute a basis was not inference; legal of enough is not that a blow to the head of they raise a mere suspicion They surmise or of could result in that condition. relied permit existence of the fact purely history hypertension or on a which the of relating to them. We con- plaintiff denied WATSON, Joseph Appellant, L. testimony
clude that the medical probable was the hypertension effect hemiplegia disregard- must be COMPANY, ZEP MANUFACTURING Furthermore, testimony since this ed. Appellee. experience and general based on No. 19827. specific than the medical literature rather Texas, Appeals Court Civil plaintiff, we do not con- symptoms of Dallas. sider to be so con- finding on causation preponder- trary great weight April 1979. clearly wrong. ance of the as to be evidence Rehearing May Denied Campbell, testified that he was not having any difficulties with his health physical exami- passed a work related
nation to the date on a few months
which he received a blow to his head. The enough
blow was severe to raise a knot on a headache. The head and to cause persisted
headache in mild form until the eight to ten hours collapse some
later. No incident intervened between of the
blow to the head and the on-set expe- unusual exertion was No time. He during period
rienced
stopped night short time after the for the feeling well.
accident because he was not got morning began up
When he the next
experiencing symptoms which led to his col-
lapse period of time. within a short
The circumstances are such to lead to the job related
reasonable conclusion precipitated
incident adverse to
testimony of the doctor is so probable cause as to over- existence evi- weight
come the of the circumstantial Company
dence. of North Amer- Kneten, (Tex.1969).
ica v. rehearing granted
The motion for rendered judgment heretofore withdrawn. The
court is
trial court is affirmed.