Buchanan v. Maryland Casualty Co.

• Decision Date: 24 November 1926
• Docket Number: (No. 717-4639.)
• Parties: BUCHANAN et al. v. MARYLAND CASUALTY CO.
• Court: Texas Supreme Court

288 S.W. 116

BUCHANAN et al. v. MARYLAND CASUALTY CO.

(No. 717-4639.)

Commission of Appeals of Texas, Section B.

November 24, 1926.

Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Proceeding under the Workmen's Compensation Act by O. M. Buchanan and others (for the death of their son, O. M. Buchanan, Jr.), claimants, against the Maryland Casualty Company. Appeal was taken from an award of the Industrial Accident Board and demurrer to plaintiff's cause of action was sustained. Upon appeal to Court of Civil Appeals, the judgment of the district court was affirmed. Pending hearing on motion for rehearing, Court of Civil Appeals certified questions to Supreme Court. Questions answered.

H. B. Davis, of Corsicana, and Bryan & Maxwell, of Waco, for appellants.

Hitzfeld & Lynch, of San Antonio, Davis, Jester & Tarver, of Corsicana, and Jos. W. Hale, of Waco, for appellee.

POWELL, P. J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Tenth District:

"O. M. Buchanan, Jr., the son of appellants, was working for the J. K. Hughes Development Company in the oil fields of Navarro county, and while so engaged was stricken with typhoid fever, from which he died. The J. K. Hughes Development Company was at said time employing more than three men and was operating under the Workmen's Compensation Act, having taken out a policy of insurance with appellee under the provisions of said act.

"Appellants filed their claim with the Industrial Accident Board, claiming that their son contracted typhoid fever from which he died by reason of the food or drinking water which his employer J. K. Hughes Development Company, was required to and did furnish him under his contract of employment. The Industrial Accident Board made an award, from which an appeal was taken by appellee to the district court, which sustained a general demurrer to appellants' cause of action, holding, in effect, that typhoid fever contracted by Buchanan while in the employment of Hughes Development Company, and as a result of the water and food furnished him by it, was not a compensable injury.

"At a former day of this term of court we affirmed the judgment of the trial court, and the cause is now pending before us on motion for rehearing. By reason of the importance of the question involved, and because of the insistence on the part of appellants that our opinion is in conflict with the case of Millers Indemnity Underwriters v. Heller, 253 S. W. 853, in which case a writ of error was refused by the Supreme Court, and because we have some doubt with reference to the correctness of our holding, we deem it advisable to certify to the honorable Supreme Court for determination the following questions material to the disposition of this appeal:

"First Question. Under the Workmen's Compensation Act, is typhoid fever, contracted by an employee as a result of impure water or food furnished by an employer, an accidental injury under the terms of said act?

"Second Question. Under the Workmen's Compensation Act, is typhoid fever, contracted by an employee as a result of the impure water or food furnished by an employer, a compensable injury?

"Third Question. Was the trial court correct in sustaining the general demurrer of appellee to appellants' petition, and was it error for this court to affirm the holding of the trial court in said respect?

"In our opinion we followed what we thought was the holding in the case of Texas Employers' Insurance Association v. Jackson (Tex. Com. App.) 265 S. W. 1027, which appellants contend is in conflict with the Heller Case, supra, and if not in conflict therewith, that the Heller Case should control in the disposition of this case."

We think the Court of Civil Appeals correctly decided this case. A copy of its opinion accompanies the record. We quote from that opinion as follows:

"A number of the states have Workmen's Compensation Acts. No two of them, however, are, so far as we have found, exactly the same, and there have been many decisions written by the courts of the different states attempting to construe said acts. Our Workmen's Compensation Act defines what is to be construed as an injury in section 5 of article 8309 of the Statutes, which reads:

"`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 infections as naturally result therefrom.'

"In those states where the Workmen's Compensation Act provides that an injury is compensable which is caused by accident and which grows out of and is incidental to the servant's employment, the weight of authority seems to be that a disease is a compensable injury if it was contracted by the employee while engaged in and as a result of his employment. Ætna Life Insurance Co. v. Portland Gas Co., 229 F. 552, 144 C. C. A. 12, L. R. A. 1916D, 1027; Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273, Ann. Cas. 1918B, 293; Wasmuth-Endicott Co. v. Karst, 77 Ind. App. 279, 133 N. E. 609; H. P. Hood & Son v. Maryland Casualty Co., 206 Mass. 223, 92 N. E. 329, 30 L. R. A. (N. S.) 1192, 138 Am. St. Rep. 379; Columbia Paper Stock Co. v. Fidelity & Casualty Co., 104 Mo. App. 157, 78 S. W. 320. Where, however, as under our statute, the terms `injury' and `personal injury' are defined to mean `damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom,' the authorities seem to hold that before an employee who contracts a disease is entitled to compensation it must be shown that the disease is the direct result of the injury. The definition of `injury' contained in the Workmen's Compensation Law of New York (Consol. Laws, c. 67) is very similar to ours, and the Supreme Court of that state, in Richardson v. Greenberg, 188 App. Div. 248, 176 N. Y. S. 651, held that a disease which was not superinduced by an injury inflicted upon the body was not compensable, and in said case held that an employee who contracted glanders by handling horses which had said disease could not recover. To the same effect is the holding in State ex rel. Fairbault Woolen Mills...