Transport Insurance Co. v. Campbell

On Motion for Rehearing

On reconsideration of the evidence we have concluded that we were in error in reversing this case. The rule of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965) must be applied and we can consider only the evidence and inferences tending to support the jury findings, and must disregard all evidence and inferences to the contrary.

The medical witnesses agreed that the exact cause of the plaintiff’s hemiplegia could not be pinpointed because sufficient testing was not performed. They agreed that a blow to the head of the plaintiff could result in that condition. They relied on a history of hypertension which the *178plaintiff denied relating to them. We conclude that the medical testimony to the effect that hypertension was the probable cause of the hemiplegia must be disregarded. Furthermore, since this testimony was based on general medical experience and medical literature rather than the specific symptoms of the plaintiff, we do not consider the finding on causation to be so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Mr. Campbell, testified that he was not having any difficulties with his health and had passed a work related physical examination a few months prior to the date on which he received a blow to his head. The blow was severe enough to raise a knot on his head and to cause a headache. The headache persisted in a mild form until the time of his collapse some eight to ten hours later. No incident intervened between the blow to the head and the on-set of the hemiplegia. No unusual exertion was experienced during this period of time. He stopped for the night a short time after the accident because he was not feeling well. When he got up the next morning he began experiencing symptoms which led to his collapse within a short period of time.

The circumstances are such to lead to the reasonable conclusion that the job related incident precipitated the hemiplegia. The testimony of the doctor is not so adverse to the existence of probable cause as to overcome the weight of the circumstantial evidence. Insurance Company of North America v. Kneten, 440 S.W.2d 52 (Tex.1969).

The motion for rehearing is granted and the judgment heretofore rendered by this court is withdrawn. The judgment of the trial court is affirmed.