Liberty Mut. Ins. Co. v. Thompson

• Decision Date: 21 January 1949
• Docket Number: No. 12362.,12362.
• Citation: 171 F.2d 723
• Parties: LIBERTY MUT. INS. CO. v. THOMPSON.
• Court: U.S. Court of Appeals — Fifth Circuit

171 F.2d 723 (1948)

LIBERTY MUT. INS. CO. v. THOMPSON.

No. 12362.

United States Court of Appeals Fifth Circuit.

December 23, 1948.

Rehearing Denied January 21, 1949.

Henry D. Akin, of Dallas, Tex., for appellant.

C. A. Brian, of Marshall, Tex., and J. R. Cornelius, of Jefferson, Tex., for appellee.

Before HOLMES, WALLER, and LEE, Circuit Judges.

HOLMES, Circuit Judge.

This action was brought by the appellee under the Workmen's Compensation Law of Texas, Vernon's Ann.Civ.St.Tex. art. 8306 et seq. He was awarded a lump-sum judgment for accidental injuries suffered by him in the course of his employment. The facts in evidence as found by the jury were, in substance, as follows:

On the night of January 3, 1945, without a mask to protect his nose and mouth while he was unloading boxes that contained T. N. T., the appellee began to feel weak, became hungry, began vomiting, and felt as if he were going to faint. This condition had lasted for an hour or two when another load of boxes was brought in for him to unload. When the door to the room was opened, the wind came in and was cold; it stirred up the T. N. T. powder, and whipped it back into his face; it knocked him down, or he fainted ("just like that," he said, snapping his fingers), and he was unconscious for about fifteen minutes. When he came to himself, he was still in the box-building room with a double door on the front, and they had three or four steam heaters in there to keep their hands warm. When the doors were shut, it was warm; but when the doors were open and the wind blew in, the dust was worse than when they were shut. All the time when the door was open, the wind continued to blow "this powder and stuff from these old boxes, this powder being T. N. T. powder."

Appellee detailed at some length his subsequent history, having been first treated by Dr. Marsh, and the next year by the doctors at the Charity Hospital in Shreveport. Dr. Pardue, whom the jury evidently believed, testified that his examination in 1946 revealed that appellee was suffering from a condition known as pernicious anemia, the exact cause of which is unknown; but physicians do know that it is due to an injury which results in a disability of the red bone marrow to produce the red blood cells properly; that the blood cells are normally produced in the bone marrow from which comes the blood; that anemia may result from injury to the red-blood-cell-producing tissues; that there are several substances capable of producing injury to the bone marrow, "particularly any chemicals containing the pernicious ring, which includes T. N. T." It is generally recognized medically, he said, that T. N. T. may cause a deficiency of this bone marrow or an injury to it, because T. N. T. has a poisonous effect on the red bone marrow.

In answer to a hypothetical question, the doctor specifically answered: "Well I think it would be logical to assume that the poisoning of the type he had, working under those conditions, he could have very easily received a poisonous dose of trinitrotoluene which does injury to the sight of the pathology pathologist in the case of pernicious anemia. We do know that. The rest we have to assume. I would assume that it could have been the precipitating factor of the anemia." Then came the following question and answer: "Q. Do you regard it as logical to assume that with the history I have given you, doctor? A. I do." In his report to the Industrial Accident Board, this doctor said: "In my opinion, disability was due to injury suffered during the time he was handling T. N. T. Nature of injury found on examination: Pernicious anemia, condition probably due to T. N. T. poisoning."

The issue as to the nature and duration of appellee's injury was submitted to the jury, and the questions on this appeal are whether the case should have been submitted to a jury at all; and, if so, whether it was properly submitted. Appellant's specifications of error (6 and 7) go to the heart of the merits of this case, and reveal appellant's conception of the ultimate question for decision to be whether the appellee's disability was the result of an occupational disease or an accidental injury, the former being noncompensative and the latter compensative under the Texas law.

We go a step further, and state the issue before us to be as follows: Whether or not there was before the jury substantial evidence from which a fair and impartial man might reasonably infer that appellee's disability was directly and proximately caused, or materially contributed to, by an accidental injury incurred by him on January 3, 1945, from breathing T. N. T. dust in the course of his employment.

That the appellee became disabled in the course of his employment on said date, after breathing large quantities of T. N. T. dust, is clearly established by the evidence; but was his disability the result of an accidental personal injury, and not merely an occupational disease? The question is a close one, but we think there is in the record sufficient substantial evidence of the accidental origin of appellee's disease to support the verdict. For illustration, let us take a case that is not close: If a man dies of pneumonia brought on by an attack of influenza, we would say that he died of the disease, and that it was a natural death; but if the pneumonia causing death was the result of a gunshot wound accidentally inflicted, we would say that he died of an accidental injury.¹ Such a wound intentionally inflicted by a criminal is accidental as to the injured party.²

In Buckeye Cotton Oil Company v. Ragland, 5 Cir., 11 F.2d 231, this court upheld damages awarded for chronic bronchitis and other respiratory ailments caused by breathing air that was laden with particles of dirt, dust, and lint, put out in the manufacture of cotton seed oil. The just-cited case was not an action under any workmen's compensation act, and the plaintiffs therein were not employees; but the decision illustrates how both equitable jurisprudence and the common law take cognizance of personal...