Supreme Court of Texas.
GARCIA et al.
TEXAS INDEMNITY INS. CO.
March 10, 1948.
Attorneys & Firms
*413 **333 J. A. Copeland, and C. F. Tucker, both of Houston, for petitioners.
*414 Baker, Botts, Andrews & Walne, of Houston, and James W. Mehaffy, of Beaumont, and Bernard J. Mackin, of Houston, for respondent.
This is a workmen’s compensation case filed by Dolores Garcia et al., petitioners, against Texas Indemnity Insurance Co., respondent. The jury’s answers to the special issues were favorable to petitioners, but the trial court overruled their motion for judgment on the verdict and granted respondent’s motion for judgment non obstante veredicto. That judgment was affirmed by the court of civil appeals. 205 S.W.2d 803.
Matthew Garcia, husband and father of petitioners, was a dock hand at a merchandising **334 store, in Houston. His principal work was to load and unload trucks. There were two entrances to the dock where this loading and unloading was done, one for customers’ delivery and the other for freight trucks; they were separated by a square brick and concrete post reaching from the ground to the second floor. This post was set in a concrete block, which extended out several inches around the base of the post with rounded edges and corners. However, to protect the post from trucks entering and leaving the dock, steel edgings were set up on this concrete base to cover each corner of the post to a height of 4 feet and 7 1/2 inches above the ground. These edgings were 3 1/2 inches wide and half an inch thick; and where they joined at the top on each corner of the post they produced a sharp corner, which ‘sticks out a little over an inch’ from the post. A witness for respondent testified that he measured these sharp corners ‘with reference to a man’s head if a man was standing there’; that ‘on a normal size individual’ they would come ‘about his head or the cheek if he fell’; that ‘if a man fell straight down from a standing position’ this sharp corner would be in the way.
The entrances to the docks were inclosed by steel gates, which were operated from above by means of pulleys and ropes. These gates were raised each morning and lowered at the close of business each evening. It required two men to operate them, and one of Garcia’s duties was to assist in that work.
*415 On Saturday evening, October 17, 1942, at about 8:55 o’clock and some thirty minutes after his other work had been completed, Garcia was waiting for 9 o’clock when he and a fellow-worker, named Stevens, were to lower these gates. In testifying for respondent, Stevens said that as they waited he and Garcia were standing near the post, talking; that Garcia was leaning against the post on his left shoulder and facing toward the street; that Garcia had said that he wanted to hurry home to his wife and children, when ‘all of a sudden he jumped up and fell to the pavement and kicked and threw his arms in the air, he jumped up, he kinda jumped sideways and it scared me and it is possible he hit the post’; that, after Garcia fell to the sidewalk he was ‘kicking and throwing his hands above his head and his eyes looked kinda like they was popped out’, and that ‘he was urinating.’ In a sworn statement made shortly after the occurrence Stevens stated: ‘All of a sudden Garcia jumped up in the air and sort of sideways and I believe that when he jumped up and sidewise he hit against the concrete post * * * and then he fell to the ground. I saw that he was unconscious and his eyes were rolling around in his head and his arms were up and flailing as though he was having rigors. Also while on the ground he commenced urinating.’
Within a few minutes an ambulance took Garcia to a hospital and at about 9:15 his widow was being told that he was dead. The mortician who prepared the body for burial testified that there was a ‘jagged’ hole in Garcia’s left temple which had to be filled with wax and that a cut ran through the upper part of his left eyebrow out into the temple; that he was called to the Garcia home three times before the funeral to rewax the temple because fluid kept escaping through the fracture.
Without objection, exception or request for other issues by either side, the trial court submitted to the jury four special issues, in response to which the jury found: (1) that on October 17, 1942, Garcia received an injury in the course of his employment with his store; (2) that this injury was accidental; (3) that this injury was a producing cause of his death; and (4) that his death was not due to natural causes.
In its motion for judgment non obstante veredicto respondent contended, as it does here, that the uncontradicted evidence shows that Garcia did not die as a result of any accidental injury sustained in the course of his employment and that petitioners had wholly failed to prove that he died of any such injury. The basis of this contention is, first, that he did not *416 die of any injuries at all but of epilepsy; second, if he did die of personal injuries they were sustained in a fall caused by epilepsy **335 and therefore did not arise out of his employment.
Although a doctor who performed an autopy on Garcia’s body testified that in his opinion Garcia died of an epileptic seizure and the testimony otherwise sharply conflicted as to whether Garcia received any injury which was calculated to produce death, there was ample evidence that in falling he suffered a fracture of his left temple, which another doctor testified would ‘in all reasonable probability’ have caused his death; so we are obliged to accept the jury’s finding that an accidental injury sustained in his fall was a producing cause of his death. Moreover, in spite of an entire absence of any evidence that Garcia had ever suffered from epilepsy, we are going to assume that he fell while in an epileptic fit. So the precise question for decision is: Since Garcia’s fall was due to his epilepsy did his injury arise out of his employment? In other words, was there a causal connection between the conditions under which his work was required to be performed and his resulting injury, under art. 8309, Vernon’s Ann.Civ.St., as construed in cases like Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238?
As this question has never been decided in Texas, we have looked to the decisions in other jurisdictions for the answer.
Eighteen American jurisdictions allow recovery under circumstances parallel to those in this case, while only three deny it. Illustrative cases for the affirmative are: McCarthy v. General Electric Co., 293 Pa. 448, 143 A. 116, 60 A.L.R. 1288.
However, the force of the holdings in Utah and Pennsylvania must be discounted because in those states it is not required that the injury arise out of the claimant’s employment, it being sufficient if the injury is sustained in the course of his employment. And in Carroll v. What Cheer Stables Co., the Rhode Island case, supra, wherein the claimant became dizzy and fell from a hack, there was as much evidence that the fall was caused by an unexpected lurching of the hack as that it was due to his dizzines.
Only Oklahoma, Kansas and Michigan now deny compensation under circumstances like those in this case. See **336 Van Gorder v. Packard Motorcar Co., 195 Mich. 588, 162 N.W. 107, L.R.A.1917E, 522. These cases see no causal connection between the injury and the employment; they assert that but for the epileptic seizure there would have been no injury.
Most of the cases cited as representing the great weight of American authority reject this argument that but for the epileptic seizure there would have been no injury, by the application of this test: ‘If, excpt for the employment, the fall, though due to a cause not related to the employment, would not have carried the consequences it did, then causal connection is established between injury and employment, and the accidental injury arose out of the employment.’ President and Directors of Georgetown College v. Stone et al., supra, 61 App.D.C. 200, 59 F.2d 875, 877, the employee, while using a hot water hose to defrost ice cans, suffered an epileptic fit, during which he was so severely burned by the hot water that he died. The Court of Appeals of the District of Columbia said: ‘These facts admit of but one lawful conclusion, to wit, that the employee’s death was caused by the burns and not by the epilepsy, and that the burns were inflicted by means of the instrumentalities used by the employee in the course of his employment, and therefore arose out of, as well as in the course of, the employment.’
According to the undisputed testimony in the case at bar, most of which came from respondent’s witness, Stevens, he and Garcia were waiting to perform their last duty of the day, to close the dock gates; just before he fell Garcia was leaning his left shoulder against the post which separated the entrances to the dock and to which some of the mechanism for operating the gates was attached, with the left side of his head just above the sharp corner made by the steel edgings placed on the post to protect it from trucks entering the dock. Since there is positive evidence that there was nothing whatever on the ground which could have caused the fracture in his left temple and an entire absence of any evidence to the contrary, there is no reasonable *419 conclusion but that his head struck this sharp corner as he fell to the ground, just as Stevens himself twice clearly intimated that it did.
Under the great weight of authority as represented by the above-cited cases as well as the better reasoning, we hold that Garcia’s injuries arose out of his employment, because it had ‘causal connection with’ his injuries, ‘either through its activities, it conditions, or its environments.’ **337 Savage v. St. Aeden’s Church, supra, 122 Conn. 343, 189 A. 599, 601. Since there is no claim that the fall was caused by any third person’s intention or by Garcia’s intoxication, we must hold that the cause of his fall is immaterial.
Under the circumstances stated, it follows that since the fall resulted in an injury which was in turn a producing cause of his death, his death is compensable, although the fall may have been due to a pre-existing idiopathic condition. As said by the Supreme Judicial Court of Massachusetts, in Barlau v. Minneapolis-Moline Power Imp. Co., supra, 214 Minn. 564, 9 N.W.2d 6.
The trial court erred in granting respondent’s motion for judgment non obstante veredicto. He should have granted petitioner’s motion for judgment on the verdict.
Accordingly, both judgment below are reversed and the cause is remanded to the trial court with instructions to enter judgment for petitioners upon the verdict of the jury. See Reid v. Associated Employers Lloyds, Tex.Civ.App., 164 S.W.2d 584 (er. ref.).