American Surety Co. of New York v. Ritchie

• Court: Texas Court of Appeals
• Writing for the Court: Tirey
• Citation: American Surety Co. of New York v. Ritchie, 182 S.W.2d 501 (Tex. App. 1944)
• Decision Date: 01 June 1944
• Docket Number: No. 2587.,2587.
• Parties: AMERICAN SURETY CO. OF NEW YORK v. RITCHIE.

Page 501

182 S.W.2d 501

AMERICAN SURETY CO. OF NEW YORK v. RITCHIE.

No. 2587.

Court of Civil Appeals of Texas. Waco.

June 1, 1944.

Rehearing Denied September 28, 1944.

Appeal from District Court, McLennan County; R. B. Stanford, Judge.

Proceeding under the Workmen's Compensation Act by Henry R. Ritchie, claimant, opposed by the National Gypsum Company, employer, and the American Surety Company of New York, insurance carrier. From a judgment for claimant against the insurance carrier on appeal from an award of the Industrial Accident Board, the insurance carrier appeals.

Reversed and remanded.

Malone, Lipscomb, White & Seay, of Dallas, and Naman, Howell & Boswell, of Waco, for appellant.

O'Dowd & O'Dowd, of Waco, for appellee.

TIREY, Justice.

This is a compensation case. Plaintiff has appealed from the final award of the Industrial Accident Board seeking to recover compensation benefits from the American Surety Company of New York, the compensation carrier for his employer, National Gypsum Company. The jury rendered a verdict in plaintiff's favor for 144 weeks' compensation at $20 per week, and judgment was accordingly rendered in his favor against the insurance carrier.

Plaintiff's cause of action was grounded upon an injury he alleged he received on or about November 3, 1942 while in the course of his employment. On the matters pertinent to this discussion the jury found substantially that plaintiff sustained an accidental injury to his body on or about the aforesaid date; that such injury was received by plaintiff in the course of his employment; that plaintiff suffered an incapacity to work as a result of such injury, and that such incapacity became total on said date for a period of 144 weeks; that he suffered no partial incapacity; that the average weekly wage plaintiff had the capacity to earn as "process inspector," if he had been continuously employed as such for the year elapsing next prior to the day of his injury was $33.80; that plaintiff's incapacity was not caused by an occupational disease.

The sixteenth point assails the court's charge on the definition given of "occupational disease." It was: "You are instructed that the term `occupational disease', as used in this charge, is one acquired in the usual and ordinary course of an employment, which, from common experience, is recognized to be incidental thereto, and is the usual and ordinary result incident to the pursuit of any occupation, and must, in the nature of things, be the result of a slow and gradual development."

Appellant objected to the court's charge substantially on the grounds (1) that said definition of "occupational disease" is incorrect as applied to the facts of this case in that it requires that the disease must be the result of a slow and gradual development, whereas the evidence tendered is to the effect that the disease may be contracted in a short time, the time element varying according to the person and his susceptibility; and (2) that the language "and must in the nature of things be the result of a slow and gradual development" is a comment on the weight of the evidence and places a greater burden on the appellant than it is required to bear. We sustain these contentions.

It is without dispute that appellee's employment with the National Gypsum Company began on September 29, 1942, and ended on November 8, 1942; that he was employed to work with and around TNT and the incapacity complained of was due to TNT poisoning. Pertinent to this point he alleged substantially that on or about November 3, 1942, while acting in the course of his employment, he sustained an accidental injury, in that at such time he inhaled an unusual amount of TNT fumes as the result of excessive steam pressure. Appellant adduced competent medical testimony to the effect that the length of time in which the disease of TNT poisoning may be contracted "depends on the susceptibility of the patient * * * if we were going to test him for occupational sensitivity for TNT we would test and in twenty-four hours we would get a result * * * we would test him out for his sensitivity and that would show within twenty-four hours."

Our Supreme Court, in Barron v. Texas Employers Ins. Ass'n, 36 S.W.2d 464, 465, said: "A disease acquired in the usual and ordinary course of an employment, which from common experience is recognized to be incidental thereto, is an occupational disease and not within the contemplation of the Workmen's Compensation Act, but an injury resulting from accident is something which occurs unexpectedly and not in the natural course of events. It is one which may possibly be prevented by the exercise of due care and caution upon the part of the employer. Schneider on Compensation Laws, p. 419, § 223; Gay v. Hocking Coal Co., 184 Iowa 949, 169 N.W. 360." See also Bonner v. American General Ins. Co., Tex.Civ.App., 139 S.W.2d 204; Hartford Accident & Indemnity Co. v. Jones, 5 Cir., 80 F.2d 680, writ denied 298 U.S. 655, 56 S.Ct. 674, 80 L.Ed. 1381; Industrial Commission v. Roth, 98 Ohio St. 34, 120 N.E. 172. Immediately following this quoted statement the court says: "A distinguishing characteristic of an accidental injury is that it can always be traced to a definite time, place and cause. * * * An occupational disease must be restricted to one...