(concurring).
There is evidence in this record that Mr. Morris drank from a bottle containing liquid which smelled like cyanide. There is no evidence of the quantity of the liquid ingested.
Dr. Martinez testified that in his opinion Mr. Morris did not die of cyanide poisoning but that he died from a blunt blow on the head. The length of time which Mr. Morris lived after drinking from the bottle and the lack of cyanosis (bluish or reddish coloring of the body skin) caused Dr. Martinez to reach the conclusion that Mr. Morris did not die of poisoning. Dr. Martinez testified that the poisoning contributed to his death “because it might have weakened his condition.”
Dr. R. F. Trotter, a recognized pathologist in San Angelo, answering a hypothetical question embracing facts proved, as to the cause of death of Mr. Morris, testified: “A suspicion would have to be cyanide poisoning because of the odor. Having very little to go on, the premise would have to be that until proven otherwise; however, in the absence of cyanosis I could not state that the death was from cyanide.”
Dr. Trotter testified that cyanide is a very rapid acting poisoning. He also testified :
“Q Now, you stated a few moments ago, Dr. Trotter, that the cyanosis is an important factor in this matter of cyanide poisoning. How important is the time factor, sir ?
A In any respiratory distress, the longer that it goes on the more intense you might consider the cyanosis to be.
*305Q Do you mean by that that you would expect a person to be more cyanotic twenty minutes after he ingested poison, assuming he is still alive, to be more cyanotic then than he was ten minutes or five minutes after he took the poison ?
A Correct.
Q Now, does this cyanosis fade? Does the normal color return or does another color replace this cyanotic color, generally speaking?
A Well, the cyanosis as you observed it would only clear up if the person recovered and oxygenation became normal again. If the mucosa or internally the person was examined and it had a reddish appearance, in time they didn’t clear up he may become more brownish in appearance.
Q All right. So, are you saying, Doctor, that if a person lived for as long as 45 minutes or an hour after he took poison and got over the cy-anosis that you would expect him to recover from the effects of the poison?
A. If his cyanosis clearned I would have expected him to start oxygenating, if you want to call it that, again; yes, I would have to put it that way.”
On cross examination by appellant, Dr. Trotter testified as follows:
“Q Now, Doctor, is it your testimony that cyanosis is an indispensable element in the diagnosis of cyanide poisoning, in all cases?
A Sir, there are always exceptions in medicine.
Q I gather your answer is ‘no,’ that it is not an indispensable element in all cases?
A I am sure there will be exceptions.
Q Doctor, assuming that a patient is brought into the Shannon Emergency Room with either no blood pressure or rather low blood pressure, with a weak, thready pulse of approximately eighty, the examining physician does not know whether the pupils are dilated or contracted; the examining physician does not know what the patient’s reflexes are, whether he has any reflexes, and so forth; the examining physician at that point does not know whether the patient can raise his arms or whether the arms just flop down; the examining physician finds superficial lacerations; and assuming that the examining physician finds a bruise about the size of a half a dollar on a portion of the forehead and brow; assume further that the examining physician finds the patient breathing slow and irregular; assume that the patient is admitted to the emergency room at approximately 1:25 p. m., and assume that the patient expires about 1:45 p. m.; assume further that there is a history of an automobile accident, and there is also a history and a smell of burnt almond, that there is a history or a suspicion that this particular patient drank cyanide some, oh, let’s say some 30, 40 minutes prior to that time.
Assuming that this is all the information that the physician has. Now, from this set of facts, if this is all that is available, from this set of facts, is it medically, scientifically possible for the physician to express a medical opinion that the automobile accident was the sole cause of this person’s death?
A It could be.
Q I say, with no further facts, is it possible for the physician to express an opinion that the automobile accident is the sole cause of the patient’s death?
*306A Well, I certainly agree with the counsellor that that is not very many facts to go on. However, there are two factors there based upon the time on which he could make that statement, one of which, the lack of cyanosis, and one of which is the rapid pulse.
Q All right. Now, let me ask you this: Under those facts can you rule out completely that the cyanide has no contributing cause to the death?
A To be perfectly honest you could not rule out that it did not have a contributing effect.
Q In other words, you just don’t know, isn’t that right, Doctor?
A In the absence of a post mortem examination you would have to say we do not know exactly. There is a reasonable doubt.
Q Well, there is a pretty big element of doubt, just what the man died of, isn’t there Doctor?
A Yes, there is a reasonable doubt.
Q As far as that goes, he could have died of a heart attack, with these facts ?
A Correct.
Q He could have died from any number of things ?
A He could have.”
The evidence, in my opinion, heavily preponderates to the conclusion that Mr. Morris did not die of cyanide poisoning. The only contrary evidence is supplied by Dr. Lloyd R. Hershberger, who, in answering a hypothetical question containing the basic proved facts, testified that as to the cause of death of Mr. Morris, “I would have to consider cyanide as my first choice.”
Since the jury could rule poisoning out as the cause of death it could, under the testimony of Dr. Martinez, find that the death of Mr. Morris was caused by a blow on the head. It could also find that this was the sole cause of death unless the statement by Dr. Martinez that poisoning “might have weakened his condition” and hence contributed to his death precludes, as a matter of law, such finding.
Appellant strongly relies upon Hudman, cited by the Court, to sustain its position that the testimony of Dr. Martinez, in this respect, necessarily, and as a matter of law, established that the injuries received by Mr. Morris in the automobile accident were not the sole cause of his death. I do not so consider Hudman. I believe that the “weakened” condition of Mr. Morris, due to the ingestion of cyanide, was, factually at least, only a “preexisting condition or disorder” within the following language of that opinion:
“We do not hold that every preexisting frailty or enfeeblement of the human body which coexists with an accidental injury will defeat recovery under such policies as Hudman’s. To do so would defeat recovery in most instances because mere senescence makes all flesh heir to infirmity and weakness. Policies are, to use Cordozo’s phrase, issued to those who are neither ‘an Apollo or Hercules.’ Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914 (1930). Recovery is not defeated when a preexisting condition or disorder is so remote in the scale of causation, so dormant and insubstantial, or so temporary and transient that it does not materially contribute to the death or injury. Howe v. National Life Ins. Co., 321 Mass. 283, 72 N.E.2d 425, 170 A.L.R. 1254 (1947). In most cases, the competent evidence of qualified persons separates the real causes of death or injury from mere conditions or at least raises issues for the determination by the fact finder. 29A Am.Jur., Insurance, §§ 1211-1213; 82 A.L.R.2d 614, 623; 56 A.L.R.2d 806-808; 131 A.L.R. 266-269; 1A Appleman, Insurance Law & Practice, § 403, p. 88.”
I believe that under the evidence it was within the province of the jury to say whether the weakened condition of Mr. *307Morris due to the ingestion of an undetermined amount of cyanide “materially contributed” to his death.
I concur in the Court’s opinion.