Highlands Insurance Company v. Clements, 300

Decision Date30 November 1967
Docket NumberNo. 300,300
Citation422 S.W.2d 218
PartiesHIGHLANDS INSURANCE COMPANY, Appellant, v. James E. CLEMENTS, Appellee. . Corpus Christi
CourtTexas Court of Appeals

William R. Eckhardt, of Vinson, Elkins, Weems & Searls, Houston, for appellant.

Moise H. Simon, Bay City, Raymond L. McDermott, Houston, for appellee.


NYE, Associate Justice.

This is a compensation suit brought against appellant Highlands Insurance Company by appellee James E. Clements, who alleged that he sustained an accidental injury on December 31, 1964, while working in the course and scope of his employment for Brown & Root, Inc. The jury in response to special issues found that the appellee had sustained such an accidental injury, which was a producing cause of total and permanent injury and incapacity. The jury also found that the appellee's incapacity was not caused solely by a virus infection known as herpes zoster which was not connected and did not result from an accidental injury, and further that appellee's incapacity to work has not been caused solely by loss of sight of his right eye. The court, on the jury verdict, entered judgment for appellee. The appellant insurance company has perfected its appeal to this Court raising six points of error, all of which are evidence points.

Appellant restates his points one through four that there was no evidence of probative force to support the jury's finding that appellee sustained an accidental injury on December 31, 1964, while working within the scope of his employment. These four points include assignments that the trial court erred in overruling appellant's motion for instructed verdict, overruling appellant's motion to disregard certain jury findings, and for refusing to grant appellant's motion for judgment non obstante veredicto. Points five and six are to the effect that the jury verdict that appellee sustained an accidental injury and that his incapacity was not caused solely by a virus infection is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Considering these evidence points we are directed to the law as has been announced and repeatedly upheld by our Supreme Court in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); see In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The record shows that the appellee was forty-four years of age and resided at Falfurrias, Texas. He began working as an insulator in 1953 and continued to pursue the insulation trade until his injury. In August 1964 he was employed by Brown & Root, Inc. to work on a project at the Celanese plant near Bay City, Texas. Prior to the accidental injury of December 31, 1964, the appellee was in excellent physical condition. Following the alleged accidental injury appellee virtually lost the entire sight of the right eye.

The record shows that on the last day of December 1964 the appellee along with his supervisor Calvin Funk, were conducting an inspection of the facilities and particularly a red iron building. While on top of this 'red iron' building the appellee looked directly into a duct which was located on the top floor of this building. As he peered into the inner recesses of the duct he was momentarily exposed to warm vapors emitting from the duct. He estimated that he was standing exposed to the vapors for about thirty seconds; that these vapors possessed a sour or foul pungent odor. Appellee testified that he immediately experienced a sensation described as 'smart' on the side of the face as he was exposed to the vapors. Later on during the course of the afternoon, and within two hours after this exposure, and before the appellee got off duty at 5:30 p.m., he noticed an increased burning on his forehead, the right side of his face, and around his right eye. This incident occurred on Friday and upon returning to work on Monday the appellee immediately reported his condition to the company nurse. She observed that the appellee's eye was severely irritated and that the right side of his face was surrounded by tiny blisters. She noted that the appellee was in severe discomfort and she therefore made arrangements for him to be seen by the company doctor. The appellee was hospitalized within four or five days for a period of three days for the treatment of this condition. His condition was diagnosed as 'shingles of the eye' or herpes zoster.

Herpes zoster was defined medically as neurotropic virus which tends to...

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2 cases
  • Western Cas. & Sur. Co. v. Gonzales
    • United States
    • Texas Supreme Court
    • 29 Enero 1975
    ...America v. Kneten, 440 S.W.2d 52 (Tex.1969); Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933 (1954); Highlands Insurance Co. v. Clements, 422 S.W.2d 218 (Tex.Civ.App.1967, writ ref'd n.r.e.); Weller v. Northwest Airlines, 239 Minn. 298, 58 N.W.2d 739 (1953). It is even suggested in the Parke......
  • City of Houston v. Caldwell, 8188
    • United States
    • Texas Court of Appeals
    • 12 Abril 1979
    ...with the rule governing claims under the Texas Workers' Compensation Act. See, e. g., Highlands Ins. Co. v. Clements, 422 S.W.2d 218, 219 (Tex.Civ.App. Corpus Christi 1967, writ ref'd n. r. e.). ...

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