Charter Oak Fire Ins. Co. v. Perez

• Decision Date: 16 October 1969
• Docket Number: No. 15466,15466
• Citation: 446 S.W.2d 580
• Parties: The CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. Ysidro C. PEREZ, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 580

446 S.W.2d 580

The CHARTER OAK FIRE INSURANCE COMPANY, Appellant, v. Ysidro C. PEREZ, Appellee.

No. 15466.

Court of Civil Appeals of Texas Houston (1st Dist.).

Oct. 16, 1969.

Rehearing Denied Nov. 13, 1969.

Vickery & McConnell, Charles R. Vickery, Jr., Houston, for appellant.

Tabor & Ray, Carl L. Ray, Houston, for appellee.

PEDEN, Justice.

Occupational disease case under the Workmen's Compensation Insurance Act. The carrier has appealed from the judgment based on a jury finding that the claimant was totally and permanently disabled by having been poisoned by certain substances he had inhaled.

Perez was employed by Todd Shipyards Corporation, where he had worked for several years as a welder.

In answering the special issues submitted to it, the jury found: 1) Perez sustained an occupational disease by reason of poisoning by carbon dioxide, or carbon monoxide or nitrous fumes or zinc or all or any combination of said substances, 2) such occupational disease was sustained by Perez while he was employed by Todd, 3) it was the producing cause of total disability, 4) the total disability was permanent, 5) it began on December 11, 1966, 7) the occupational disease was not found to be a producing cause of any partial disability, 11) the occupational disease was due to the nature of his employment, in which the hazards of such disease actually exist, 12) the occupational disease is characteristic of the claimant's employment with Todd and is peculiar to his trade, occupation, process or employment, 13) his disability began within one year of his last injurious exposure to the hazards or causes of the disease, 14) Todd had notice within thirty days of the first distinct manifestation of the occupational disease, 17) the occupational disease is aggravated by emphysema, pneumoconiosis or essential hypertension, 18) the occupational disease bears a 100% Proportion as a causative factor to all the causes of the claimant's incapacity, 19) his incapacity from emphysema, hypertension or pneumoconiosis is aggravated, prolonged, accelerated or contributed to by the occupational disease, 20) such occupational disease, as a causative factor, bears a 100% Proportion to all the causes of the claimant's incapacity and 21) when Perez sustained the occupational disease, he was not found by the jury to have been suffering from a prior existing disease, impairment or condition of his lungs which is the sole cause of his incapacity.

We overrule the point of error by which appellant complains that the first special issue was submitted alternatively, specifically and globally at the same time. The transcript contains an instrument which reflects that counsel for both parties and the trial judge agreed that objections to the charge might be dictated and considered as having been timely filed. The record does not show, however, that the transcribed objections were presented to the trial judge so that he could endorse on them his official signature as required by Rule 272, Texas Rules of Civil Procedure, so we cannot consider them. Big Three Welding Co. v. Roberts, 399 S.W.2d 912, 918 (Corpus Christi Tex.Civ.App.1966, writ ref., n.r.e.); Texas General Indemnity Co. v. McNeill, 261 S.W.2d 378 (Beaumont Tex.Civ.App.1953, no writ); State v. Turboff, 431 S.W.2d 953 (Houston 1st Tex.Civ.App., 1968, no writ).

Appellant raises 'no evidence' and 'great weight of the evidence' points of error as to the jury's answers to Special Issues 1, 3, 11, 12, 13, 18 and 20.

Mr. Lenamond, a welding and metallurgical consultant, described the production of carbon monoxide and carbon dioxide in welding and testified that zinc oxide fumes are among the fumes produced when welding is being done on galvanized mild steel; that the fumes make welding very dangerous in areas where the ventilation is inadequate. Mr. Perez related that he had been welding on that type of steel before and during the period when he became ill, December 6 to December 11, 1966, and that it was his welding on the galvanized steel and the zinc that made him sick. Also, that he had been welding in poorly ventilated areas on barges that were being built.

Dr. F. J. Gibson testified that Perez has a lung condition which has progressed to the point that almost any type of dust or fumes will irritate his bronchial tubes and cause him to have an asthma attack. He testified on direct examination by Mr. Ray:

Q 'Now, Doctor, taking into consideration your examination and treatment of the--and the history given to you by Mr. Perez and further taking into consideration the hypothetical situation that--that--that this man was welding on his job and that while he was welding he was in--many times in an area of close ventilation or at least limited ventilation--taking also into consideration that as a result of this welding there were certain gases or fumes known as carbon monoxide, carbon dioxide, and nitrous fumes excreted from this weld while welding in this close area--based upon those facts Doctor, do you have an opinion concerning the causation or the cause of the condition which you have found in Mr. Perez?

A I would say this would precipitate a crisis--I might say it might cause--be the primary cause.

Q 'What, in your opinion, Doctor, would in--or did in Mr. Perez's case, cause the condition which you found him to be--upon your examination of him?

A. 'I'd say an inhalation of some sort has caused him to have the damage to his lungs.

Q. 'Would this inhalation be in the form of poisoning by some of these substances I have mentioned or any or all?

A 'If he were to breath these it would poison him.

Q 'By those poisons--Doctor, would that poisoning result in his condition as it exists here today and as it existed upon your examination of him?

A 'Yes, sir.

Q 'Now, Doctor, with reference to your examination of him and your conclusions, have you any conclusions other than this reflected in the hospital records concerning Mr. Perez's condition or the condition of his body?

A 'I believe that Mr. Perez will be permanently disabled from working around any type of material that puts off fumes or a dust of any kind of a material that will irritate the lining of his lungs.

Q 'Could he now, in your opinion, Doctor, do work where he would be susceptible to dust or--or any type of irritant in the air?

A 'No, I wouldn't advise him to work under those conditions.

Q 'Would he be able to do that without injuring his body further?

A 'He would be unable to.

Q 'Now Doctor, with reference to your diagnosis that you have before you there that were made at the time of admission to the hospital, will you tell the jury, please, sir, exactly what your diagnosis is--that is chronic bronchitis is one and asthma and emphysema--explain and tell the jury if those are diseases in and of themselves or are they conditions of the body?

A 'Emphysema is a condition of the body such as the dimming of vision and graying of hair--it is an aging process. It can be accelerated by fumes or conditions such as diabetic condition or asthma brought on by bronchitis which is an infection that produces the asthma--the asthma itself is a narrowing of the tube from your upper respiratory down to the very parts of your lungs where the carbon monoxide and oxygen interchange.

Q 'Now, with reference to bronchitis--what is bronchitis?

A 'It is an irritation of the bronchio and the bronchio subdivisions.

Q 'Is bronchitis a disease caused by a virus or disease itself or is bronchitis a result of irritation?

A 'All three.

Q 'Could you explain to the jury what your opinion is concerning the causes or the causation of the bronchitis, if any, that you found in Mr. Perez?

A 'Based on his history--his working conditions.

Q 'Yes, sir. Could you tell the jury, in your opinion, what the cause of that was?

A 'Mr. Perez--if he were to breath any kind of fumes like the powder you use or perfume you use, he would begin to have an asthma attack regardless where the fumes came from or what they are--molecular or whatever size they are, he would go into an acute asthma attack.

Q 'Taking into consideration, Doctor, the fact that--or the hypothetical situation, when you first examined Mr. Perez the past history would show that he was asymptomatic as far as respiratory diseases are concerned--is that correct?

A 'I didn't hear the first of your question.

Q 'With reference to your history, did Mr. Perez give you any previous history of asthma, bronchitis or emphysema or upper respiratory disease?

A 'When I saw him, as I remember, the last--about six years before when he went to work for the company, at that time he had an examination--as near as I remember he had no limitation of his lungs when he was hired.'

On cross-examination Dr. Gibson testified that Perez has chronic bronchitis, asthma and emphysema. He stated that he did not know what caused the primary lung condition of Perez, then later said it was caused by dust of undetermined origin. Later, on re-direct examination, he testified:

Q 'I'm not trying to infer anything, Doctor, but you testified on direct examination he has a condition in his lungs assuming the assumptions we made on direct that you have these particular materials in these fumes, in your opinion the condition of his lungs--the primary condition of his lungs was caused by the breathing of those fumes?

A 'Yes, right then he has the ability to go into such condition if he's breathing an over-concentration of smoke.

Q 'and that condition is caused by what...