Leal v. Employers Mut. Liability Ins. Co., A2410

Decision Date16 July 1980
Docket NumberNo. A2410,A2410
Citation605 S.W.2d 328
PartiesAndres C. LEAL, Appellant, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY, Appellee. (14th Dist.)
CourtTexas Court of Appeals

John H. Holloway, Houston, for appellant.

Michael Phillips, Nancy Myers, Boswell, O'Toole, Davis & Pickering, Houston, for appellee.

Before BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.

J. CURTISS BROWN, Chief Justice.

This is a workers' compensation case.

Appellant, Andres C. Leal brought this suit against Appellee, Employers Mutual Liability Insurance Company of Wisconsin to appeal the award of the Industrial Accident Board. Appellant claimed that he suffered a compensable injury under Tex.Rev.Civ.Stat.Ann. art. 8306, § 20 (Vernon Supp. 1980). The jury found that appellant did not have an occupational disease, but found that appellee failed to pay $975.93 in reasonable medical expenses incurred by appellant as a result of his disease. The court set aside the award of the Board and awarded appellant $975.60 for medical expenses. The court further ordered that appellant take nothing against the insurance carrier for workers' compensation benefits. Appellant appeals from the judgment.

Appellant Leal was employed by the St. Regis Paper Company as a maintenance man for about twenty years. When the company began manufacturing plastic bags, appellant started complaining of bronchial and lung problems due to the breathing of industrial fumes, smokes and pollutants. Leal testified that before St. Regis manufactured plastic bags, he did not have any lung or respiratory problems. Appellant's last exposure to these fumes and irritants was June 9, 1976, when he voluntarily resigned from St. Regis. Appellant testified that he was unable to return to the same type of employment at St. Regis and was unable to hold any employment for about three years.

Appellant urges that the trial court erred in admitting into evidence a letter from the McGovern Allergy Clinic. The letter stated, in part, "(i)n our opinion sensitivity to households dust, mold spores and selected pollens was the basic cause of his symptoms and industrial fumes, smokes and pollutants may play an aggravating role in the allergy." Appellant claims that this letter was hearsay testimony on a material issue and should have been excluded. We agree. The letter contained statements made out of court offered for the purpose of proving the truth of such statements. Hartford Accident & Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.Sup.1963). The evidence was hotly contested and the verdict could have gone either way. The admission of this letter was harmful error. Tex.R.Civ.P. 434.

Appellant also complains of the trial court's charge that was submitted to the jury. Appellant contends that the court erred in submitting Special Issue No. one in terms of "occupational disease" instead of "injury." Special Issue No. one states:

Do you find from a preponderance of the evidence that plaintiff has or had an occupational disease?

"Occupational disease" means any disease that causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom but does not mean ordinary diseases of life to which the general public is exposed except where such diseases follow as an incident to the "occupational disease."

The statute in question, Article 8306, § 20,...

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1 cases
  • Fidelity & Cas. Co. of New York v. Shubert
    • United States
    • Texas Court of Appeals
    • 6 January 1983
    ...charge conforms with the provisions of § 20 of art. 8306, V.A.C.S. 1 and is correct, Leal v. Emp. Mut. Liab. Ins. Co., 605 S.W.2d 328 (Tex.Civ.App.--Houston [1st Dist.] 1980, reh. den., no writ); however appellant argues that in light of the state of the pleadings and evidence in the case, ......

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