(concurring).
Mrs. Henderson is entitled to receive death benefits under the workmen’s compensation law if her husband’s death occurred when it did because of an injury sustained in the course of his employment. A heart attack precipitated or brought on by the activity of the job is an injury sustained in the course of employment. A claimant must prove activity and then prove that the activity was a cause of this particular attack or injury. The proof cannot stop at possibility — nor need it reach certainty; it is enough to prove the probability. The claimant need only produce evidence and obtain findings that it is more likely than not that the workman’s activity at his work overstrained his heart and precipitated his death.
The testimony of Dr. Gwynne and of Dr. DeLeon may be reasonably construed to the effect that it was their opinion that Owen Henderson’s work probably precipitated his heart attack and death. The jury was entitled to construe their testimony to that effect — and to accept it.
*655The problem here is whether a jury would be entitled to find — and whether the doctors were entitled to assume — physical activity by Henderson prior to his attack. This is by no means the first case where the efforts and injury of the workman have been connected by circumstantial evidence rather than by eyewitness testimony of a particular event to which the injury is directly connected. In Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581 (1938), a hotel maid died of a cerebral hemorrhage. There was no proof of her movements on her last day at work. It was proved that she had been at her job for two or three hours before complaining of a pain in the back of her head, and it was proved that on prior days she had lifted heavy articles and moved furniture in the course of her employment. The proof was circumstantial, but it was legally sufficient to support the finding of the jury.
The very fact that tasks were preformed may be evidence of the workman’s effort required to perform them. So in Pan American Fire & Casualty Co. v. Reed, 436 S.W.2d 561 (Tex.Civ.App.1968, writ ref’d n.r.e.), there was no witness available to testify to a particular incident of exertion immediately prior to the collapse of the truck driver, who was found dead in front of his truck; it was enough to prove that he had worked all day and that he had apparently drained a pump prior to his death. In Standard Fire Ins. Co. v. Sullivan, 448 S.W.2d 256 (Tex.Civ.App.1969, writ ref’d n.r.e.), circumstances tended to prove that the deceased had operated a tractor to cut weeds on the day of his death.
I do not contend that all of the cases can be harmonized. Unfortunately, the courts are not always consistent. Por example, in Monks v. Universal Underwriters Ins. Co., 425 S.W.2d 431 (Tex.Civ.App.1968, writ ref’d n.r.e.), circumstances tended to prove that the workman was pulling a wheel and tire from the hub of an automobile at the time of the heart attack which caused his death. In my opinion a directed verdict was not justified.
The evidence in the present case indicates that Owen Henderson died at his job after having performed a full day’s work which began at 7:30 a.m. There was evidence that his work was physically strenuous or demanding. Examples were given of the types of strain and pressure required by his job. We have no reason to require proof of an episode of physical exertion at the instant before Henderson collapsed — not if the doctors do not require that to make the medical causal connection. The doctors took the findings of the autopsy and the time and place of Henderson’s death; then with their knowledge and experience they concluded that Henderson’s work probably was a producing cause of his death.
I believe that a jury could find that Henderson’s body was subjected to strain by this day’s work. It is not a question of presumption — or presumption upon presumption. It is simply that evidence that Henderson successfully completed this day’s work, together with evidence of what his job required, reasonably support the conclusion that Henderson probably did tire and strain his diseased heart until the deadly attack occurred.
I concur in the remand of the cause for trial.
STEAKLEY, J., joins in this concurring opinion.