# Commonwealth Bonding & Casualty Co. v. Hendricks

> Court of Appeals of Texas · May 9, 1914 · 168 S.W. 1007

URL: https://www.frixlaw.com/law-library/cases/9830072

## Case

- **Full name:** Commonwealth Bonding & Casualty Co. v. Hendricks
- **Court:** Court of Appeals of Texas
- **Decided:** May 9, 1914
- **Citations:** 168 S.W. 1007; 1914 Tex. App. LEXIS 1062
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Talbot
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9830072

## Opinion text

On Motion for Rehearing.
[8] Upon reconsideration of appellant’s second assignment of error, on its motion for a rehearing, we conclude the trial court materially erred in refusing to give in charge to the jury the special charge to which said assignment relates. In the certificate or letter referred to in the special charge Dr. Norris states very emphatically that, in his judgment, the death of W. P. Hendricks was due to paralysis of the heart, and that from the history he got of the case was caused by tetanus. Whether Hendricks’ death was in fact caused by tetanus was a vital issue in the ease, and the certificate in question was admitted in evidence, without any limitation being placed upon its consideration by the jury. That the statement made by Dr. Norris in the certificate, in the absence of any direction by the court qualifying or limiting the use to be made of it, was considered by the jury in determining the cause of Mr. Hendricks’ death, and that, being considered for that purpose, it influenced the jury in arriving at the verdict rendered, is highly probable. The testimony bearing upon the cause of Mr. Hendricks’ death was conflicting, but would have supported a finding that it was not the result of tetanus. About one month elapsed from the date of the injury to the time of his death, and two physicians whose standing, experience, and ability is not questioned in the record before us testified most positively that the period of incubation of the tetanus germ is 15 days, and that in their opinion it was not possible for Mr. Hendricks’ death to have been due to tetanus produced by the sticking of the nail in his foot.
To apply rule 62a and hold, in the face of this testimony, that the error in refusing the special charge was not reasonably calculated to cause, and did not probably cause, the rendition of an improper verdict and judgment would be to push that rule too far, and evidently beyond what was contemplated in its promulgation.
Appellant’s motion for a rehearing will therefore be granted, the judgment heretofore rendered in this court set aside, and for the error in refusing said special charge the judgment will be reversed, and the cause remanded.
Reversed and remanded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9830072. Public record. Not legal advice.