I am unable to agree to the fact findings and conclusions reached in the majority opinion. A. H. Shifflette is dead, and that he died from a diseased condition of his heart there can be no question. He was a man past sixty years of age, suffering for several years prior to his death with a chronic heart trouble, which two attending physicians, Drs. Stout and Enloe, pronounced was gradually getting worse, and that he died solely as the result of the disease.
The deceased died at his home about 2 o'clock, a. m. on September 1, 1931. The only witnesses who saw him at or about the mill on the date immediately preceding his death are: W. E. Maddox, Frank Potter, C. D. Hopson, D. M. Austin, and Claud Atnip. The only witness who saw him on August 31st or September 1st, before his death, at any other place than the mill, is the plaintiff, Mrs. Byrde Shifflette. She saw him at no place except their residence.
I deem it advisable to quote literally much of the testimony of the witnesses, in view of my dissent, as to the findings of fact by the majority:
Dr. Stout testified that he had known Mr. Shifflette for approximately 15 years and, during that time, had treated him professionally for a diseased condition of the heart. In 1929, Mr. Shifflette had influenza, which caused infection of his respiratory organs, resulting in an inflammation of the heart, for which he treated him from September 8, 1930, to the date of his death; that his condition did not improve, but gradually got worse; and that "from the fact that he gradually became worse I could not see a favorable prognosis. I thought it was a question of time before there would be a fatality, and that he died as the result of a degeneration of the heart muscle, resulting from infection caused by influenza."
Dr. Enloe testified to the same effect as that of Dr. Stout; that he treated Mr. Shifflette professionally for a year prior to his death; that he found him suffering from inflammation of his heart, resulting from a prior attack of influenza, which, in the last few months of his life, was getting "progressively worse, affecting his heart muscle, a degeneration, lessening its power to pump, the function it serves. A man in that condition is in danger of death at any time; some live quite a period, but often exertion or strain hastens his death from that disease; that Mr. Shifflette died as a result of a diseased heart."
Mr. Potter testified that he had been working with Mr. Shifflette for about three years prior to his death; that Mr. Shifflette complained often of suffering with his heart, that his heart was giving him trouble; that his physical appearance was noticeable, some days he would be worse than other days, never appeared to be strong; and that during the year preceding his death it was easily detected that he wasn't as strong as he theretofore had been. He testified that Shifflette said that "he would have to take care of that heart of his, or that he would get bumped off."
Mr. Austin testified that during the preceding six months prior to Mr. Shifflette's death, "he would be off three or four weeks for a time and seven weeks I think it was and a whole lot you know just times and times, time after time. We really didn't pay much attention when he was off and when he was working and when he was not working, we always had somebody else to take his place, I don't know hardly how to explain, but we didn't expect a lot out of him, that is after he had been sick so long and things like that, we just kind of drifted along."
Mr. Atnip testified that for a year prior to Mr. Shifflette's death he told him that his heart was bothering him; and that *Page 793 he was taking medicine, strychnine tablets, for his heart.
Mrs. Shifflette testified that, during the year prior to his death, Mr. Shifflette was taking, regularly, digitalis, amytal pills or tablets, and other medicines to stimulate his heart action.
The above-recited facts, to my mind, reveal that the disease of which Mr. Shifflette was suffering was in its advanced stage; that he died as the result of the disease; and that such is not controverted by the testimony of Dr. Craig, in answer to a hypothetical question, recited in the majority opinion, that "the running up those stairsteps, `the heart muscle was subjected to a strain, ruptured the muscle fibres, causing hemorrhages, thereby producing death.'" There is no testimony in the record that the deceased "ran up the stairsteps"; thus, the hypothesis, on which Dr. Craig's testimony is based, finds no support in the record.
Reviewing further the facts in their chronological order:
On the fatal day, August 31, 1931, Mr. Shifflette left home, operating his own automobile; at 7 o'clock he was seen on the fourth floor of the mill by Mr. Atnip, who testified that there was nothing "unusual about his action or appearance"; at 8:30 or 9 o'clock Mr. Austin and Mr. Maddox saw him on the first floor of the mill, starting to take the freight elevator, going up, when Mr. Austin said to him: "Mr. Shifflette, we are going to use that elevator, and you cannot use it with passengers." Mr. Shifflette said: "I am sick." Mr. Austin said: "Are you sick?" Shifflette said: "Yes." Mr. Austin said: "Well, go home, if you are sick, go ahead home, I don't want you to work if you are sick." Mr. Shifflette said: "I am not that sick." And then Mr. Austin said: "You go upon the roller floor, that is the grinding floor, the fourth floor, and you stay up there until I get the manlift running, and you go on up there and tell Mr. Hopson I told you to go up there and stay until you get ready to go home." About an hour after the above-related conversation with Mr. Austin, Mr. Maddox saw Mr. Shifflette on the stairway, on the first landing, between the first floor and the second floor, quoting from his testimony:
"Q. What were you doing at that time? A. I was passing through the shaft.
"Q. You were not on the same stairway he was on? A. No, sir.
"Q. Was he going up or coming down the stairway? A. Going up.
"Q. Describe what you saw him doing. A. He was walking when I saw him.
"Q. Was there anything unusual about his walk? A. I never noticed it, if there was."
At about 10 o'clock, Mr. Hopson saw Mr. Shifflette on the fourth floor of the mill, had a conversation with him, in which Shifflette said that "he had been downstairs and Mr. Austin sent him up there to the fourth floor and told him to stay on that floor until they could get the manlift to running," and he says, "I cannot climb those stairs."
"Q. What was his appearance at that time, describe it? A. I couldn't tell anything out of the ordinary.
"Q. Did he make any complaint to you? A. No, nothing more, only just said he could not climb the stairway.
"Q. Did you see him apparently exhausted, lying around resting or overcome with any unusual condition at any time during that day? A. No."
The record shows that during the forenoon several of the above-named witnesses saw Mr. Shifflette on the fourth floor of the mill, doing his usual work of supervising the process of milling; saw him about 1 o'clock go to his noon meal; and each described his appearance as being the same as usual, talking of going dove hunting on the next day. The deceased traveled to his home, again operating his own automobile, arriving there about 1:15. His wife saw him stop at an unusual place, and immediately went out to where he was, saw him gasping, his face drawn and very pale, appeared to be in pain. She helped him out of the car, took him in the house, and on the way to the house, over objection, Mrs. Shifflette was permitted to relate what the deceased said, i. e. "Well, he just said, `My heart,' and he says, `I had — the manlift was out and I had to rush up those steps and I fell and it hurt me.'"
As I view the testimony, it not only fails to show that the deceased ran up the stairway, establishing the hypothesis for the testimony of Dr. Craig, in answer to the hypothetical question propounded to him, but against the theory on which it is based; furthermore, there is no testimony of the deceased being "compelled to go up the stairs in order to perform his duties," as found by the majority; or that the deceased told Austin that "it was necessary for *Page 794 him to go at once to the fourth floor"; or that "the disease of which the deceased was suffering was not in its advanced stage"; or that the deceased "was requested to go up the stairs at the time, to perform his duties"; or that "the deceased sustained an injury on the occasion in question, contributing to his death"; or that "the deceased fell exhausted while climbing the stairs"; furthermore, there is no testimony that the deceased "rushed up the steps, fell and was hurt," to sustain the hearsay declaration of Mrs. Shifflette of what her husband said to her four hours after he climbed the stairs.
On the contrary, as I view the testimony, it shows that the deceased was in the advanced stages of heart disease; that he traveled to and from his work, operating his own automobile; that, on the fatal day, he was a sick man, said "he was sick," and at 8:30 or 9 o'clock, Mr. Austin told him to go home or to the fourth floor of the mill, on account of his illness, and remain there until the manlift was put into operation; that, in about an hour thereafter he was seen walking up the stairway in his usual walk, and it may reasonably be presumed he continued the walk to the fourth floor; that he was seen by Mr. Maddox about 10 o'clock on the fourth floor, at which time he related the orders given him by Mr. Austin. Mr. Shifflette was seen at various hours in the forenoon and until one o'clock in the afternoon on the fourth floor, going about supervising the process of milling, making no complaint to any one as to having fallen or hurt himself in climbing the steps; but, on the contrary, apparently was not hurt, talking and planning on going dove hunting on the next day. Mr. Shifflette arrived at his home at 1:15. Mrs. Shifflette, over objection, related what deceased said to her on arrival at his home, as to the cause of his condition.
The evidence is undisputed that, during the afternoon, at 2 o'clock, he returned to the mill, was seen on various floors performing his duties as an assistant to the head miller, talking to other employees about the dove hunt of the next day. At 6 o'clock, he was seen in a happy mood, one describing his actions as "waltzing out of his office," removed his work clothing, washed himself, preparatory to going home, dressed himself, and traveled home, again operating his own automobile. No complaint was made either in the forenoon or afternoon to any of his fellow workmen of being hurt, or having fallen on going up the stairway; there was nothing unusual about his appearance and action.
To my mind, under the related facts, it is inconceivable that the deceased told Mrs. Shifflette: "I had to rush up those steps and I fell and it hurt me," as there is no evidence of the principal occurrence about which the statement was made; and, manifestly, the related statement is against the uncontroverted evidence that there was no such occurrence.
Furthermore, if the statement was made, the declaration is clearly hearsay and inadmissible under the res gestæ rule announced by the authorities of this state and approved text-writers. It was made four hours after the deceased was seen ascending the stairsteps; and, if any injury occurred, Mr. Shifflette's mind had been restored to its normal status after the occurrence and before the declaration admitted in evidence was shown to have been made.
As stated above, the deceased, after ascending the steps, went about his usual business, talking about and planning a dove hunt for the following day, and apparently in his normal status. The statement attributed to him, as to the cause of the injury, was but the statement of a past event, and was but the deceased talking about the facts rather than the facts talking through the deceased.
In the case of Lumbermen's Reciprocal Ass'n v. Adcock et al. (Tex.Civ.App.) 244 S.W. 645, 649, Mrs. Adcock and her two minor children obtained judgment in the trial court upon a policy of workmen's compensation insurance against the insurer. Adcock was employed by a lumber company and was working at a sawmill. It was plaintiff's theory that Adcock was injured in undertaking to raise a log. Mrs. Adcock testified that he came home about 10 o'clock, complaining of an injury to his urinary organs and claimed to be suffering severely; that she could see that he was in fact suffering, as he claimed to be. She was permitted to testify, over objection, that "Mr. Adcock, when he got home at 10 o'clock, did tell her how he was injured and stated to her that while he was walking from one side of the boat to the other in the discharge of his duties at the log boom, he fell astride the crossplank or timber and injured himself in the locality of his urinary organs, and that he was suffering from the injury, and told Mrs. *Page 795 Adcock to send for a doctor." The court, in the opinion, said:
"Was his statement to his wife as to the cause of his injury admissible as res gestæ? We have concluded that it was not. That statement, if made, as to the cause of the injury, was but the statement of a past event, which had taken place several hours before, and was not the expression of present pain and suffering, and we know of no case in Texas which has gone to the extent of making Adcock's statement to his wife as to the cause of his injury admissible as res gestæ.
"The cause of Adcock's injury in this case was the first question to be determined. It was, of course, necessary also, before recovery could be had by appellees, to show that the injury, if it occurred while performing his duties, was the cause of or materially contributed to his death. But the statement to his wife that he was injured while performing the duties of his employment and how it came about, was clearly not admissible. St. Louis S.W. Railway Co. v. Gill (Tex.Civ.App.)55 S.W. 386; Ft. Worth D.C. Railway Co. v. Stone (Tex.Civ.App.)25 S.W. 808; Texas N. O. Railway Co. v. Crowder, 70 Tex. 222,7 S.W. 709; Roth v. Travelers', etc., Ass'n, 102 Tex. 241, 115 S.W. 31, 132 Am. St. Rep. 871, 20 Ann.Cas. 97."
We could well rest this case on the reasoning of the court in the Adcock Case and the cited authorities; the situation is similar.
In the case of McDowell v. Security Union Ins. Co. (Tex.Civ.App.)10 S.W.2d 782, 785, a workmen's compensation case, brought by the wife and minor children of J. H. McDowell, deceased, a similar situation as here was presented. The El Paso Court of Appeals said: "It was not error to refuse to permit Mrs. Sophia McDowell to state what her husband said to her after he arrived at home some two hours or more after he was seen to leave the power house, as to when and where he fell and received the injury on his temple. Any statement he would then make would not be admitted as original evidence under the rules of res gestæ. Lumbermen's Reciprocal Association v. Adcock (Tex.Civ.App.) 244 S.W. 645, in which Judge Hightower for the Beaumont court discusses the rule and refers to many Texas cases sustaining his conclusion. We refer to that case and the cases used as stating the Texas rule."
In Roth v. Travelers' Protective Ass'n of America, 102 Tex. 241,115 S.W. 31, 34, 132 Am. St. Rep. 871, 20 Ann.Cas. 97, opinion by Judge Brown of the Supreme Court, the suit was to recover from the insurer upon a policy on account of Roth's death resulting, while skating upon an ice-covered pond, he fell upon the ice. A short time afterwards, he became ill and died. A man by the name of White was Roth's companion at the time of the fall. The opinion reads: "The plaintiff took the deposition of J. W. Sullens, who met White and Roth on the streets of Henryetta as the latter were returning from the pond where they had been skating. In answer to an interrogatory the witness detailed statements made by White and Roth with reference to the latter's fall on the ice, all of which we hold to be inadmissible, because it was hearsay, except that which states the action of Roth in placing his hand to his head, which might be admitted, with the accompanying statement, `it hurt my head and made it ache,' being limited to proof of the fact that his head ached at the time he was speaking, but not to be considered as evidence to establish the fact of the fall or of striking his head on the ice."
In the case of International Great Northern Ry. Co. v. Anderson,82 Tex. 516, 17 S.W. 1039, 1040, 27 Am. St. Rep. 902, the Supreme Court, speaking through Judge Gaines, say: "All declarations or exclamations uttered by the parties to a transaction, and which are contemporaneous with and accompany it, and are calculated to throw light upon the motives and intention of the parties to it, are clearly admissible as parts of the res gestæ. Very respectable authorities restrict the doctrine of res gestæ within the limits indicated by the foregoing definition, and exclude all declarations which are a narration of past occurrences. This is a convenient and salutary rule, and probably the more logical one; and, if it were an open question in this state, we should hesitate long before adopting another. Another rule, applied in many of the American courts at least, is to admit as parts of the res gestæ 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 *Page 796 result of premeditation or design. * * * In most of the cases cited the declarations admitted were the relation of past occurrences. This line of decision has been followed in this court (Galveston v. Barbour, 62 Tex. 172 [50 Am.Rep. 519]), and, in view of the great array of authority in support of that ruling, we deem it best to adhere to it in this case."
In the case of International Travelers' Ass'n v. Griffing (Tex.Civ.App.) 264 S.W. 263, 265, Judge Looney, speaking for this court, said: "A declaration made or an act done after the happening of the principal fact may be admissible as a part of the res gestæ when it is so intimately interwoven with the principal fact by the surrounding circumstances as to raise a reasonable presumption that it was made or done under the immediate influence of the principal transaction or event itself, and is the spontaneous utterance or expression of thoughts created by and springing out of the transaction itself rather than the result of premeditation or design. * * * In order that evidence of acts and declarations, otherwise objectionable, may be admitted under the res gestæ rule, it must appear that they are the spontaneous outgrowth from, in fact a part of, the principal litigated act, and, in determining the question of spontaneity, courts will also look to the condition of the declarant at the time of making the statement. A statement will ordinarily be held spontaneous if at the time when made the condition of declarant was such as to raise the inference that the effect of the occurrence on his mind still continued as when he had received an injury and was suffering severe pain. The element of time is not controlling, but is important, as it is obvious that a declaration or act is usually spontaneous in proportion as it is near in point of time to the occurrence that called it forth; but, at least, the decision of each case must turn on its own peculiar facts."
The Supreme Court of the United States, in the case of Shepard v. United States, 290 U.S. 96, 54 S. Ct. 22, 26, 78 L. Ed. 196, said: "In damage suits for personal injuries, declarations by the patient to bystanders or physicians are evidence of sufferings or symptoms (Wigmore §§ 1718, 1719) but are not received to prove the acts, the external circumstances, through which the injuries came about."
In 22 Cor.Jur. § 554, p. 466, the rule is announced: "An important consideration is whether there intervened, between an occurrence and a statement relative thereto, any circumstances calculating to divert the mind of the declarant, and thus restore his mental balance and afford opportunity for deliberation. Diversion of thought may be the result of attention to other matters, etc."
The application of these principles to the undisputed facts of this case, in the writer's opinion, forces the conclusion that the testimony complained of is clearly the hearsay narrative of a past transaction and not the contemporaneous or spontaneous declaration of the deceased. As above stated, four hours had elapsed. No witness saw the deceased fall, and no one saw him either in pain or excited. There is nothing to raise any doubt that he continued his work in the usual way for a period of four hours after he ascended the stairs. He made no complaint, and, among other things, talked about going dove hunting the next day; that being the opening of the dove season. There is no testimony in the record as to when, where, and how Shifflette was injured, if he was injured. The appellee's pleading alleges that he was injured "going up the stairs"; the evidence fails the allegation.
It is a fact of universal notoriety, that every one may fairly be presumed to be acquainted with, the disease of the heart is insidious, leading all diseases which cause death to the human race. Because a man dies of the disease, no presumption can arise of an accidental injury producing or hastening his death. To sustain the judgment in this case, the presumption must be indulged that the deceased rushed or ran up three flights of steps, fell, and was hurt, from which he died. There is no evidence of such occurrence; but, on the contrary, everything points to the fact that the occurrence did not happen, and, according to the constant and invariable course of nature, Mr. Shifflette died solely as the result of his ailment.
Under the authorities cited, the writer has no doubt that the court was in error in admitting, over appellant's objection, Mrs. Shifflette's evidence, to the effect that he was injured in rushing up the staircase, fell, and was hurt. The able attorneys for appellee recognize, and so sustain in their brief, that the admissibility of this testimony is the gravamen of the case; the facts are fully developed. In the writer's opinion, the case should be reversed and here rendered for the appellant. *Page 797