Gordon v. Travelers' Ins. Co.

• Decision Date: 27 October 1926
• Docket Number: (No. 2639.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 287 S.W. 911
• Parties: GORDON v. TRAVELERS' INS. CO. et al.
• Court: Texas Court of Appeals

Page 911

287 S.W. 911

GORDON v. TRAVELERS' INS. CO. et al.

(No. 2639.)^*

Court of Civil Appeals of Texas. Amarillo.

October 27, 1926.

Appeal from District Court, Wichita County; H. R. Wilson, Judge.

Suit by G. E. Gordon against the Travelers' Insurance Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Ragsdale & Brannan, of Burkburnett, for appellant.

Wilson & Biggers, of Dallas, for appellee Travelers' Ins. Co.

Bonner, Bonner & Fryer, of Wichita Falls, for appellee Tidal Western Oil Corporation.

JACKSON, J.

G. E. Gordon, the appellant, instituted this suit in the district court of Wichita county, Tex., to recover against the Travelers' Insurance Company, one of the appellees under the Workmen's Compensation Law of this state (Rev. St. art. 8306 et seq.), for alleged compensable injuries received by him while in the employ of the Tidal-Western Oil Corporation, which carried compensation insurance for its employees in the Travelers' Insurance Company.

In the event he was not entitled to recover against the insurance company under the Compensation Law, he sought damages against his employer, the Tidal-Western Oil Corporation, the other appellee, for negligence in failing to furnish him a safe place and safe appliances with which to work, which he charges was the proximate cause of his injuries.

He presented to the Industrial Accident Board of the state his application for compensation, which the board refused. He gave notice that he would not abide by the final ruling of the board, and in due time filed this suit.

He alleges that he was employed by the Tidal-Western Oil Corporation during the months of February, March, and April, and up to and including May 12, 1924; that while so employed, and in the course of his employment, he was on said last day injured in the manner and extent as follows: That on divers occasions during his employment he was required to use paints, oil, and gasoline of high specific gravity. He was required to stand in crude oil while performing his work, and as a result thereof he was, on the 15th day of May, 1924, stricken with a severe case of nephritis, totally and permanently incapacitating him; that in the course of his duties as employee he was directed by his employer to assist in washing and cleaning refuse oil out of a large storage tank containing but two small openings; that the air therein was very close and humid, and the cleaning was done with gasoline brought into the tank by hand, and the fumes from the gasoline and refuse oil were very offensive. The gasoline on several occasions ran over, spilled upon, and blistered, his body and legs; that he complained to his foreman that the use of gasoline under such conditions was dangerous to his health, and he would likely be injured by its use under such conditions, but was advised by his foreman that such use of the gasoline was not dangerous to his health, and he continued his work. That on one occasion, while washing, under the direction of his foreman, the engine room floor with gasoline, he became very warm, and the fumes from the gasoline made him sick; that he reported this condition to his employer, and received instructions to go into the open air when such attacks occurred; that he continued to work under such instructions and directions, and suffered several attacks of illness. On another occasion he was directed to assist in painting the dwelling of his employer and to use paint mixed with stump turpentine, the offensive odor from which made him ill; that he continued to perform his duties under such conditions and the instructions of his employer until May 12th, when he was taken so ill he was compelled to quit work, and went to a hospital at Wichita Falls, at which institution his illness was pronounced nephritis; that he remained in the hospital for three months, and suffered great bodily pain; that he had been unable, since leaving said institution, to regain his strength, and unable to perform any work for remuneration; and that his health is permanently impaired, and he is in constant danger of a recurrence of said attack of nephritis; that in the injuries so sustained he suffered an industrial disease, superinduced by taking into his system the fumes from the gasoline, oils, turpentine, paints, and other poisonous substances used in connection with the labor he was performing, and that such industrial disease was the direct result of the injury he sustained, and compensable under the Employer's Liability Law of the state of Texas.

He alleges the wages he earned the twelve months preceding his injury, and the amount of compensation he is entitled to under the Compensation Law.

He pleaded, in the alternative, that, if he was not entitled to recover...