Ætna Life Ins. Co. v. Harris, 8111.

• Court: Texas Court of Appeals
• Writing for the Court: Baugh
• Citation: Ætna Life Ins. Co. v. Harris, 83 S.W.2d 1087 (Tex. App. 1935)
• Decision Date: 15 May 1935
• Docket Number: No. 8111.,8111.
• Parties: ÆTNA LIFE INS. CO. v. HARRIS.

83 S.W.2d 1087

ÆTNA LIFE INS. CO. v. HARRIS.

No. 8111.

Court of Civil Appeals of Texas. Austin.

May 15, 1935.

Rehearing Denied June 5, 1935.

Appeal from District Court, Travis County; C. A. Wheeler, Judge.

Suit under the Workmen's Compensation Act by the Ætna Life Insurance Company to set aside an award of the Industrial Accident Board in favor of Mrs. Blanche Harris who filed a cross-action. From a judgment denying relief, plaintiff appeals.

Affirmed.

F. D. Kerbow, of Austin, for appellant.

Benton Coopwood and Hart, Patterson, & Hart, all of Austin, for appellee.

BAUGH, Justice.

This case arose under the Workmen's Compensation Act (Vernon's Ann. Civ. St. art. 8306 et seq.). In the trial court it was an appeal by the insurance company from an award made by the Industrial Accident Board against it and in favor of appellee for injuries sustained by her as an employee of E. M. Scarbrough & Sons, while in the course of her employment. Trial was to a jury upon special issues, and upon their answers thereto judgment rendered for appellee for compensation at the rate of $10.50 per week for 100 weeks, and for $307 medical and hospital bills. From this judgment, the insurance company has appealed.

The first contention made is that the trial court erred in not sustaining appellant's general demurrer to appellee's cross-action, in that her pleading does not allege that she sustained an "accidental injury" as that term is defined by law. Appellee pleaded in this respect as follows:

"Defendants for their further answer and cause of action herein say that the defendant, Mrs. Blanche Harris, was employed in the ladies' ready-to-wear department of Emerson M. Scarbrough & Sons Department Store, in Austin, Travis County, Texas, since November, 1928. She was working for said employer during the week beginning January 9, 1933. During that week said employer received shipments of ladies' coats, cloaks and dresses. That beginning on January 9, 1933, the defendant, Mrs. Blanche Harris, while engaged in the scope of her employment and performing her duties as said employe, was unpacking ladies' coats, shaking them out and putting them in stock. That while engaged in these duties, dust, dye particles, dirt and fuzz, and pieces of goods, threads and fur would fly off the coats and fill the air; that said particles got on the hands and face of the defendant, Mrs. Blanche Harris, frequently necessitating her having to wash her hands and face. That on Tuesday, January 10, 1933, these particles of dust, dye, fuzz, etc., aforesaid, got in the right eye of the defendant, Mrs. Blanche Harris causing great irritation and infection and thereby injuring said right eye. That thereafter, on Thursday, January 12, 1933, her said right eye became infected with erysipelas as the result of said injury caused by the particles getting into her eye. The condition of her eye grew steadily worse, and on Sunday, January 15, 1933, she went to a doctor, an eye specialist, who upon observing her eye ordered immediate first aid and emergency treatment in an effort to save her life. As the result of said orders and in compliance with them, defendant, Mrs. Blanche Harris was operated on immediately. Thereafter her right eye was removed."

The contention that mere conclusions, and not facts, were pleaded is not sustained. The facts relied upon are adequately set forth. The only question in this respect is whether a compensable injury, within the purview of the compensation act, is pleaded. As to that, appellant grounds its contention on the hypothesis that there must be shown a physical injury to some member of the body through which the disease germs subsequently entered, before the employee is entitled to the protection of the act. Article 8309, § 5, R. S. 1925, provides: "The terms `injury' or `personal injury' shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom." But compensable injury does not necessarily presuppose violence to some organ of the body; nor that the infection resulting must come from a distinct and separate source from that causing the injury. If the injury be accidental, and suffered in the course of the employment, and disease or infection "naturally result therefrom," it is immaterial whether the agency which causes the injury be also the same agency which carries the disease germ into the injured organ of the body. No serious controversy is made but that in the instant case the erysipelas was contracted through the causes alleged. Had the foreign materials in the air caused an irritated condition of appellee's eyes, rendering them susceptible to infection, and erysipelas then been contracted from some other source, in the course of appellee's employment, the result would have been the same. Irritation of appellee's eyes because of the foreign materials in the atmosphere constituted an injury thereto, through which injury the disease germs found entry and did their deadly work. We see no distinction in principle between injury to an eye caused by polluted atmosphere, naturally resulting in an infection, and injury to the lungs caused by inhaling gas which naturally results in pneumonia, tuberculosis, or other lung disease. A full discussion of the latter condition and the principles applicable...