Lewis v. American Surety Co.

• Court: Texas Supreme Court
• Writing for the Court: Hickman
• Citation: Lewis v. American Surety Co., 184 S.W.2d 137, 143 Tex. 286 (Tex. 1944)
• Decision Date: 06 December 1944
• Docket Number: No. A-275.,A-275.
• Parties: LEWIS v. AMERICAN SURETY CO.

Page 137

184 S.W.2d 137

LEWIS v. AMERICAN SURETY CO.

No. A-275.

Supreme Court of Texas.

December 6, 1944.

Rehearing Denied January 10, 1945.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by Fred Lewis against the American Surety Company to set aside an award of the Industrial Accident Board denying plaintiff any compensation. Judgment for plaintiff was reversed by the Court of Civil Appeals, 180 S.W.2d 988, and judgment rendered for defendant, and plaintiff brings error.

Judgments of the Court of Civil Appeals and of the district court reversed, and cause remanded to district court.

Clark, Craik, Burns & Weddell and Chester Clark, all of Fort Worth, for plaintiff in error.

Todd, Crowley & Gambill, of Fort Worth, and Malone, Lipscomb, White & Seay, of Dallas, for defendant in error.

HICKMAN, Commissioner.

The basis of this suit is a claim for hernia under the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq. The respondent did not provide a surgical operation for the petitioner, and recovery in the trial court was for a general injury. If respondent owed the duty to provide such operation, compensation was measured on the correct basis. Tally v. Texas Emp. Ins. Ass'n, 129 Tex. 134, 102 S.W.2d 180; National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, and Federal Underwriters Exchange v. Thompson, 136 Tex. 194, 148 S.W.2d 1092. The trial court's judgment was reversed by the Court of Civil Appeals and judgment was rendered in favor of respondent. 180 S.W.2d 988.

The principal question here for decision is whether or not, as a matter of law, the record discloses that the hernia for which compensation is claimed existed in any degree prior to the injury upon which petitioner bases his claim. The Court of Civil Appeals held that the hernia did exist in some degree prior to that date, basing its holding upon the following: In his notice of injury petitioner described his injury as, "Breaking down of old hernia which had commenced on same job on August 30, 1942." In his claim for compensation filed with the Board he described his injury as: "Aggravation and completion of old hernia sustained on same job on August 30, 1942." In his petition upon which this case was tried he alleged that he sustained the injury made the basis of his claim in the course of his employment on March 29, 1943. Then follows this allegation:

"In this connection plaintiff alleges that on or about August 30, 1942, while working on the same job for the same employer aforesaid, he had previously overlifted and strained himself to the extent that he sustained a potential or incompleted hernia on the left side; that he notified his employer of such injury and procured a truss and kept on working, and believed that such injury was of a minor nature and would heal; that he did not suffer to any extent from such original injury and was not incapacitated from performing the usual tasks of a workman; that following his injury on March 29, 1943, above described, the potential hernia on his left side became completed and greatly enlarged, and a small hernia also appeared on his right side."

Testimony was introduced in support of these fact allegations. Petitioner lost no time from his work on account of his prior injury and did not make any claim for compensation for either a general or a special injury based thereon. In answer to special issues the jury found that petitioner "sustained an incomplete left inguinal hernia in the month of August, 1942," and that on March 29, 1943, he sustained an injury causing such incomplete hernia "to become aggravated or completed on said date."

Hernia is a special injury separately treated in our Workmen's Compensation Law in Article 8306, Sec. 12b, a portion of which reads as follows:

"Sec. 12b. In all claims for hernia resulting from injury sustained in the course of employment, it must be definitely proven to the satisfaction of the board:

"1. That there was an injury resulting in hernia.

"2. That the hernia appeared suddenly and immediately following the injury.

"3. That the hernia did not exist in any degree prior to the injury for which compensation is claimed.

"4. That the injury was accompanied by pain."

Petitioner's claim in the instant case is for a hernia alleged to have been sustained on his left side on March 29, 1943, and is not based at all upon any injury sustained on August 30, 1942. No claim is made for a hernia on the right side. On the face of the record above quoted it would appear to be beyond dispute that petitioner's case failed to meet the requirement of subsection 3 above quoted, viz.: "That the hernia did not exist in any degree prior to the injury for which compensation is claimed." But after considering the record as a whole in the light of the meaning of the language of the statute above quoted, we have concluded that it cannot be held, as a matter of law, that it discloses that the hernia claimed to have been sustained by petitioner on March 29, 1943, existed in any degree prior to that date.

The charge does not contain a definition of hernia or of incomplete hernia. In Webster's New International Dictionary, 1937 edition, hernia is defined as follows:

"A protrusion consisting of an organ or part projecting through some natural or accidental opening in the walls of its natural cavity; as hernia of the brain, of the lung, or of the bowels. Hernia of the abdominal viscera is most common. Called also rupture."

That definition was approved in Southern Casualty Co. v. Fulkerson, Tex.Civ. App., 30 S.W.2d 911, reversed on other grounds, Tex.Com.App., 45 S.W.2d 152.

We have investigated many cases in which hernia is defined. In all of them it is described as being a protrusion, and it is universally held, so far as our investigation discloses, that unless a protrusion follows an injury no hernia is sustained within the meaning of compensation statutes. Typical of the many cases so holding may be cited the following: Stoddard v. Mason's Blue Link Stores, 55 Idaho 609, 45 P.2d 507; In re Frihauf, 58 Wyo. 479, 135 P.2d 427; Robbins v. Original Gas Engine Co., 191 Mich. 122, 157 N.W. 437; Pollock v. Clairton School District, 100 Pa. Super. 333; Hallack & Howard Lumber Co. v. Bagley, 100 Colo. 402, 68 P.2d 442; Furferi v. Pennsylvania R. Co., 117 N.J.L. 508, 189 A. 126.

In the case of Stoddard v. Mason's Blue Link Stores, 55 Idaho 609, 45 P.2d 597, 600, the Supreme Court of Idaho construed a provision of the compensation statutes of that state substantially identical with the corresponding provision in our statutes above copied. Subsection 3 of that statute reads as follows: "That the hernia did not exist in any degree prior to the injury by accident for which compensation is claimed." Code 1932, § 43-1116. From the opinion in that case we quote:

"From the authorities it appears that the conclusion must be reached that a hernia is the protrusion of some organ or tissue from its normal situation through an accidental or natural opening in the wall of the cavity in which it is contained, and that the mere presence of a perforation or an aperture in the cavity wall, either accidental or natural, and through which some organ or tissue may protrude at a later time, is not a hernia within the meaning of I. C. A., § 43-1116."

While the definition of hernia includes any and all protrusions of an internal organ from its natural location, it is evident that that term was used by the Legislature in its popular sense in the compensation statutes. Should an employee, for example, suffer an injury in the course of his employment producing a hernia of the brain, it is not believed that his right, or that of his beneficiaries, to recover compensation therefor should be limited and controlled by the specific provisions of the hernia statute. They cannot be made to apply practically to such an injury.

Applying the foregoing to the record before us, we are led to the conclusion that it was not established by...