Consolidated Underwriters v. Wright

Decision Date27 October 1966
Docket NumberNo. 14856,14856
CourtTexas Court of Appeals
PartiesCONSOLIDATED UNDERWRITERS, Appellant, v. John Victor WRIGHT, Appellee. . Houston

Joseph D. Cheavens, Paul W. Persons, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for appellant.

Frank T. Abraham, W. James Kronzer, Houston (Brown, Kronzer, Abraham, Watkins & Steely, Houston, Spinn, Ehlert & Spinn, Brenham, of counsel), for appellee.

WERLEIN, Justice.

This is a compensation suit brought against appellant, Consolidated Underwriters, by appellee, John Victor Wright, who alleged that he sustained accidental damage on or about March 5, 1963, and July 29, 1963, while in the course and scope of his employment for Texas Bolt Company. The jury found that appellee sustained an accidental injury which caused total incapacity beginning March 5, 1963, and continuing for six weeks, and partial incapacity beginning July 25, 1963, which was permanent. The jury also found that appellee's incapacity was not solely caused by any prior disease or prior bodily infirmity existing before March 5, 1963, disconnected with and not aggravated by the injury of March 5, 1963. The court, on the jury verdict and stipulation that appellee was entitled to receive his compensation, if any, in lump sum, entered judgment for appellee in the sum of $7,727.96.

In its first point appellant asserts that the trial court erred in overruling appellant's plea to the jurisdiction and in abatement because there was a fatal variance between appellee's claim before the Industrial Accident Board and the case as pleaded and submitted to the jury.

On August 24, 1963, appellee filed his notice and claim with the Industrial Accident Board on one of its printed forms entitled 'Notice of Injury from Occupational Disease and Claim for Compensation for Injury from Occupational Disease.' To the inquiry on such printed form reading: 'Date of first distinct manifestation of disease occurred on' appellee stated: 'March 5, 1963.' To inquiry: 'Date last injuriously exposed to hazards of disease' appellee stated: 'July 29, 1963'; in response to inquiry as to whether appellee had worked for any other employer since his incapacity began, appellee answered, 'Worked for same employer from April 22, 1963 to July 29, 1963.' To inquiry as to when he started losing time, appellee answered, 'March 5, 1963'; to inquiry as to whether he had returned to work, he answered, 'Yes, temporarily from April 22, 1963 until July 29, 1963, and have not worked since that date.' To the inquiry, 'Describe nature of occupational disease and cause of disease,' appellee answered, 'Injury and irritation of lung tissues and bronchi (breathing tubes) caused from breathing gas fumes, etc. from furnaces in plant.' (emphasis ours)

On another of the Board's forms appellee informed the Board that he was Injured at his employer's place of business at 10 a.m. on March 5, 1963, and that he reported the Injury on that date to his employer's superintendent. He was sent to a doctor by his employer. In a letter to the Board received January 15, 1964, appellee, inquiring why he had not received any compensation, started his letter by stating: 'I am writing in regard to a accident * * *' The Industrial Accident Board on June 22, 1964, made its award in which it stated that 'The Board finds that the evidence submitted fails to establish that the claimant suffered a compensable occupational disease in the course of employment for subscribing employer herein as alleged. Therefore, said claim is denied.'

In his original petition appellee alleged, among other things, 'Within the statutory time, your Plaintiff filed notice of injury from occupational disease and made claim for compensation for such occupational disease before the Industrial Accident Board of Texas.' He also alleged that he 'filed this suit in this Court of competent jurisdiction to further prosecute his claim for workmen's compensation insurance benefits.' Appellee further alleged in his petition that 'On or about March 5, 1963, and July 29, 1963, your Plaintiff was working in the course and scope of his employment for Texas Bolt Company in Harris County, Texas. While performing his duties for his employer on said dates, your Plaintiff suffered accidental damage and harm to the physical structure of his body in the nature of inhaling of noxious gas and fumes, causing damage and harm to his bronchial tubes, lungs and respiratory system. As a result of said injuries, your Plaintiff has been substantially unable to perform the material tasks of a workman, and therefore has been disqualified from obtaining and retaining employment as such, consequently entitling him to total compensation benefits under the Workmen's Compensation Act of Texas, either for an accidental injury under the law or as an occupational disease, in the amount of Thirty-five Dollars ($35) per week for a period of 401 weeks, as allowed by law.'

The evidence shows that appellee, who had only a seventh grade education, was engaged in making boxes for his employer, and that his place of work was in an upper level or attic of his employer's office building, where he was practically surrounded by boxes piled ten feet high, and there was considerable heat and little or no ventilation, and where smoke and fumes from the heat treating units would 'roll over here and come in, suck into back of my fan and onto me.' The potholes in the roof of such building were closed and, as appellee testified, there was no way for the fumes to escape. Appellee was the only employee who worked in the attic of the building. He testified that he was told not to open the potholes. He described the occurrence of March 5, 1963 as follows:

'Well I was working on--up there and the fumes and smoke was very bad and I found myself getting dizzy and I choked off and then I staggered myself to the front where I tried to get a little air and I set down on a box there until I could gain enough strength to see the ladder--I couldn't hardly see the ladder as I come down the ladder and I said to the superintendent Mr. Anderson--that gas is killing me--I am a sick man--and he looked at me and wrote out a letter to go to the doctor.'

He further testified that he did not go to the doctor's office immediately but lay down in his car for about an hour until he felt he was able to drive. He was given oxygen treatment. Appellee further testified that before the accident he had never had any persistent difficulty in breathing or lung difficulty of any kind or chest pain of which he was aware. He testified that since such occurrence if he walked a block or two or did much talking he was out of wind; that he could not breathe and had to quit singing in church because his breath was so short and that when he breathed hard he developed a severe pain in his chest. He was given treatments for about a year or more. He tried to go back to work and worked two or 2 1/2 days 'along the last of July' but that he was unable to stand up under the work; that he was getting no better and could not hold down any job on a full-time basis; that he had had no chest trouble before. He testified the fumes had been bothering him for several months before he finally got sick, but on that day of March 5, 1963 he got especially sick and went to the doctor.

Ernest Williams, a fellow employee who had worked for the Texas Bolt Company for some 15 years, testified with respect to the gas and the heat treating units, and also testified:

'I don't know if he fell out or not but I know he come downstairs and he had been around walking to the doors and I asked what was wrong and he said those gas fumes are sure strong and I did go up there and they sure was strong.'

There is also evidence that appellee tried to work on July 29, 1963, but was unable to do so on account of his condition.

In appellant's letter of June 16, 1964, to the Industrial Accident Board the question of traumatic injury was placed in issue in that appellant's representative said:

'1. That, it is denied that the claimant sustained any manner of accidental injury or occupational disease while in the employ of our assured.

'2. That, it is denied that this claimant has lost any time from work due to trauma or occupational disease.

'3. That, it is denied that this claimant has suffered any permanent defect or loss of wage earning capacity due to the trauma or occupational disease.

'4. That, it is our contention that this claimant's true condition and all of his symptoms are all unrelated to trauma and are not due to any substance or fumes encountered in our assured's plant; that the claimant's condition is non-occupational in every respect.'

The law governing fatal variance between claims filed with the Board and suits filed in court is stated in Booth v. Texas Employers' Insurance Association, 132 Tex. 237, 123 S.W.2d 322, as follows:

'The rule as to suits filed by an injured employee is that the amount of the claim before the Industrial Accident Board is immaterial upon the issue of jurisdiction of the court selected to review the award, the only essential jurisdictional connection between the claim for compensation before the board and the suit to set aside the award being the identity of the injury of which complaint is made.'

In that case Judge Smedley also said:

'Usually the claimant has no knowledge about the jurisdiction of courts and has little information as to the measure or extent of the compensation to which he may be entitled under the law. * * * The statute was so written as to permit the injured employee in filing his claim to make known to the board without formality the fact that he has been injured in the course of his employment and that he claims the compensation to which he is entitled under the law for the injury suffered, * *

'It has repeatedly been held, that, although one claim cannot be filed with the board and another and...

To continue reading

Request your trial
11 cases
  • Walters v. Fidelity & Cas. Co. of New York
    • United States
    • Texas Court of Appeals
    • January 29, 1981
    ...presented to the Board. Booth v. Texas Employers' Ins. Ass'n., 132 Tex. 237, 123 S.W.2d 322 (1938); Consolidated Underwriters v. Wright, 408 S.W.2d 140 (Tex.Civ.App. 1966, writ ref., n.r.e.); Petray v. Travelers Ins. Co., 393 S.W.2d 711 (Tex.Civ.App. 1965, writ ref., See also Prince v. Texa......
  • Highlands Insurance Company v. Clements, 300
    • United States
    • Texas Court of Appeals
    • November 30, 1967
    ...States Fidelity & Guaranty Co., 235 S.W.2d 509 (Tex.Civ.App.-San Antonio 1950, err. ref., n.r.e.); Consolidated Underwriters v. Wright, 408 S.W.2d 140 (Tex.Civ.App.-Houston 1966); Travelers Ins. Co. v. Smith, 266 S.W. 574 (Tex.Civ.App.-Beaumont 1924); Texas Employers' Ins. Ass'n v. Drews, 2......
  • S---- C---- v. State
    • United States
    • Texas Court of Appeals
    • July 9, 1986
    ...requested instruction which does not pronounce a correct statement of law is properly refused. Consolidated Underwriters v. Wright, 408 S.W.2d 140 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.); Swearingen v. Brown, 195 S.W.2d 724 (Tex.Civ.App.--Beaumont 1946, writ ref'd Nonetheless, the t......
  • Texas Emp. Ins. Ass'n v. Murphy
    • United States
    • Texas Court of Appeals
    • January 3, 1974
    ...Insurance Association v. Wade, 197 S.W.2d 203 (Tex.Civ.App.--Galveston 1946, writ ref. n.r.e.); Consolidated Underwriters v. Wright, 408 S.W.2d 140 (Tex.Civ.App.--Houston 1966, writ ref. n.r.e.); Texas Employer's Insurance Association v. Robison, 241 S.W.2d 339 (Tex.Civ.App.--Dallas 1951, w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT