Fidelity Union Casualty Co. v. Koonce

• Decision Date: 18 May 1932
• Docket Number: No. 3811.,3811.
• Citation: 51 S.W.2d 777
• Parties: FIDELITY UNION CASUALTY CO. v. KOONCE.
• Court: Texas Court of Appeals

Page 777

51 S.W.2d 777

FIDELITY UNION CASUALTY CO. v. KOONCE.

No. 3811.

Court of Civil Appeals of Texas. Amarillo.

May 18, 1932.

Rehearing Denied June 22, 1932.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by Albert Koonce against the Fidelity Union Casualty Company to set aside an award of the Industrial Accident Board allowing compensation for injuries sustained while in the employ of the American Smelting & Refining Company. From the judgment for plaintiff, defendant appeals.

Affirmed.

Dorenfield, Foster & Fullingim, of Amarillo, for appellant.

Wm. F. Nix, of Amarillo, for appellee.

HALL, C. J.

This is an appeal in a workmen's compensation case by Albert Koonce, the claimant, from an award of the Industrial Accident Board.

Omitting the formal parts of his pleading, he alleges that the policy issued by appellant was in full force and effect August 27, 1930. That prior to said date he was an employee of the American Smelting & Refining Company, and had been such employee for more than five years preceding said date. That his compensation rate should be determined by the weekly wages paid him during the year next preceding August 27, 1930. That while in the course of his employment he was seriously injured while working in what is known as the furnace room of the smelting company. That there was not a proper draft to carry away the smoke, fumes, vapors, poisonous gases, and heat from said room. That the place became extremely hot and uncomfortable. That the machinery of the plant or the draft provided for the furnace room failed for some reason to function, and subjected plaintiff to far greater exposure than the general public was exposed to in their places of employment. That, as a part of his duties on said date, he was required to speice the furnaces by passing along the furnace room with a small rod six feet in length, open the condensers which contained the cooking ore as it smelted and cooked in the retorts of the furnace, and that on several occasions on August 27, 1930, when plaintiff speiced the ends of the retorts to permit the blast and fire to reach all portions of the cooking ore, said retorts blew out with an explosion of hot gases, air, smoke, fumes, and poisonous vapors, striking plaintiff in the face, thereby burning and searing plaintiff's lungs and respiratory organs, causing the same to bleed, resulting in immediate illness, pain, and incapacity to labor, as a direct result of which he developed a condition similar in outward symptoms to an advanced case of tuberculosis. That the injuries sustained by him were instant, accidental, and traumatic. At that time he was a strong, robust man, able to perform unusually heavy labor, but as a direct result of the injuries he was permanently and totally incapacitated, so that he could not obtain and retain employment as a laboring man. That his injuries were immediately reported and known to his employer, as well as to the defendant, within the time fixed by law, and reported to the Industrial Accident Board, and within twenty days thereafter filed his notice of injuries, etc.

That on March 27, 1931, after due notice, the said board heard and determined plaintiff's claim and entered its final award, and within twenty days from the date thereof plaintiff gave notice in writing to the board and to the defendant that he would not abide by said award and would file suit, etc.

He further alleged that the case is one where manifest injustice and hardship would otherwise result unless the Association was compelled to redeem by the payment of a lump sum; that he be adjudged permanently and totally disabled, and awarded compensation for 401 weeks at $20 per week, less the required discount for payment in a lump sum.

A trial to a jury upon special issues resulted in a judgment in appellee's favor for compensation at $20 per week for 401 weeks.

By the first two propositions the appellant insists that the court erred in refusing to instruct the jury in its favor, because the evidence was insufficient, and because there was no evidence to show that the smoke, gases, etc., were of such a nature as to burn, sear, and irritate plaintiff's respiratory organs to such an extent as to cause tuberculosis to result therefrom.

The statement of facts consists of nearly 300 pages, and a great deal of the testimony introduced bears upon this issue. No good purpose could be subserved by quoting this testimony, which is sharply conflicting. The plaintiff himself testified that the smoke, gases, etc., blew out of the retorts in his face, were inhaled by him, burning his lungs and respiratory organs, that prior to said time he had never experienced or exhibited any symptom of tuberculosis.

Dr. Aronson, who was the physician for the smelting company and had maintained an office at the smelter for more than 3½ years, testified that, when retorts containing superheated ore were opened, flame, gases, and fumes would flare out just as the plaintiff had described. Five other doctors testified and numerous employees, the testimony of some of them being in favor of appellee and others decidedly and emphatically for the appellant. This evidence simply raised an issue which the jury has settled and which we are not authorized to disturb. The first two propositions are overruled.

Propositions numbered 3 to 7, inclusive, attack the verdict of the jury upon the ground that the evidence as to smoke, gases, fumes, etc., is insufficient to sustain the findings that plaintiff's lungs and respiratory organs were injured by the explosions from the retorts to the extent and in the manner alleged by plaintiff.

Because there is evidence to support the jury's findings, we overrule these assignments, for the reasons stated in overruling propositions 1 and 2.

Propositions 8 to 12 bear upon the same issue and present the question here by objections to the issues upon the ground that the uncontroverted evidence showed that the smoke, gases, and fumes generated in the process of smelting zinc were not injurious when breathed by the plaintiff, and would not result in burning his respiratory organs. Appellant further insists that the findings of the jury upon that issue are not supported by any evidence, and that there is no proof to show that the excessive amount of smoke gases, etc., was due to a defective ventilating system or extreme heat.

The evidence is such that we cannot disturb the findings of the jury in regard to these matters.

While the appellee's attorney was making his opening argument to the jury, he stated: "You gentlemen wonder why those men from the most lowly that labor and work at the smelter to the best men they have out there, come trooping in here to testify against the man who has clearly lost his capacity to labor by reason of the injury sustained at the smelter, when the defendant, an insurance company, seems to be responsible for the injury. Now, you gentlemen are wondering in your mind why that is. I am going to say to you that it seems strange to me that every man at that smelter, the finger of authority is put on him and he is brought down to this court-house to testify to the truth, so these gentlemen lose their memory completely. They lost their memory about the burst of flame from the retort. Not a one of them had ever heard of such a thing until the gentleman from Jerusalem,—the doctor—"

At this point counsel for appellant objected to the argument, the court sustained the objection, and instructed the jury not to consider the remarks of counsel for any purpose.

The ground of the thirteenth proposition is that the reference to Dr. Aronson as "the gentleman from Jerusalem" was an appeal to race prejudice and was made to inflame the minds of the jury. If appellee's counsel had any such intention, the record fails to show that he succeeded. He referred to Dr. Aronson as a gentleman, which is certainly not objectionable, and, while there is no evidence showing that he ever lived in Jerusalem, that part of the remark was evidently prompted by either Dr. Aronson's name or his personal appearance and pronunciation. These facts were probably as well known to the jury as to counsel. There is nothing in the record from which we...