Lotspeich v. Chance Vought Aircraft

• Decision Date: 10 May 1963
• Docket Number: No. 16172,16172
• Citation: Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex. Ct. App. 1963)
• Parties: Claudia LOTSPEICH et vir., Appellants, v. CHANCE VOUGHT AIRCRAFT et al., Appellees.
• Court: Texas Civil Court of Appeals

Page 705

369 S.W.2d 705

Claudia LOTSPEICH et vir., Appellants, v.CHANCE VOUGHT AIRCRAFT et al., Appellees.

No. 16172.

Court of Civil Appeals of Texas, Dallas.

May 10, 1963.

Rehearing Denied July 26, 1963.

Mullinax, Wells, Morris & Mauzy, Dallas, for appellants.

Thompson, Knight, Wright & Simmons, Pinkney Grissom, Rust E. Reid and John A. Gilliam, Dallas, for appellees.

BATEMAN, Justice.

AppellantClaudia Lotspeich(and husband) sued Chance Vought Aircraft, herein called the Company, and its regularly employed physician, Dr. John D. Horgan, for damages on account of appellees' failure to tell her that she had active tuberculosis, a condition alleged to have been disclosed by X-rays of her chest taken by appellees as part of her pre-employment physical examination.The trial court sustained appellees' motion for summary judgment, and our careful consideration of the entire record convinces us that there was no error in doing so.

Appellant's first five points and her seventh and eighth points challenge the action of the trial court in holding that appellant's pleadings and the depositions and affidavits on file show as a matter of law that she has no cause of action against appellees.Her sixth point asserts that the court erred in holding by necessary implication that her cause of action was extinguished by the Texas Workmen's Compensation Act.We shall discuss these two groups of contentions in inverse order.

FACTS

The following facts appear without dispute from the depositions and affidavits:

Appellant worked for the Company twice, once in 1949 and again in 1952.Incident to each employment she underwent a physical examination, including chest X-rays at the hands of Company doctors and nurses on Company premises.She and others being examined were told by 'the nurses' that if the examinations revealed anything wrong with them they would be told about it.Appellant began her last employment on June 16, 1952, the date of her examination, and quit in September 1952.She was told by Air Force doctors in 1955 that their X-ray examination of her chest revealed active tuberculosis.Subsequently two doctors in Denver, Colorado examined the X-ray plates made of her chest by the Company on June 16, 1952, and one of them was of the opinion that they showed a large cavitary lesion in her left chest and the other was of the opinion that they showed very definite evidence of far-advanced pulmonary disease, probably tuberculosis, and would have indicated to him complete diagnosis and further treatment.

The appelleeDr. John D. Horgan was in charge of the Company's medical department since, december 1950.He interpreted appellant's chest X-rays and noted thereon: 'Negative for pulmonary pathology; cardiac shadow within normal limits.'On re-examination thereof at the time of his deposition he said, 'As I see it today, if I saw that I would want another film.'

The Company had a general rule that required an employee to have a physical examination within the three days preceding his or her going to work.In 1952 X-rays of applicants for employment were in no case read by Dr. Horgan or by any employee working under his supervision in less than three weeks after the X-rays were taken, and in many cases not until from four to eight weeks after they were taken, unless the history of the applicant indicated that they should be read immediately.The physical examination record and medical history given by appellant on June 16, 1952 were considered by Dr. Horgan as routine and not indicative of an immediate reading of her X-ray plates.Throughout the year 1952 the Company was insured under a policy of Workmen's Compensation Insurance under Texas Law.

OPINION

Effect of Workmen's Compensation Law.

Appellant contends that, since she is not claiming damages for injuries received in the course of her employment, the duty of appellees to warn her of the existence of the disease did not arise out of the employer-employee relationship, but was a continuing duty fixed as a matter of public policy and continued throughout the course of her employment, and that her right of action was, therefore, not prohibited or extinguished by the Workmen's Compensation law.We do not agree.Sec. 3 of Art. 8306, Vernon's Ann.Tex.St., provides that the employees of a subscriber 'shall have no right of action against their employer or against any agent, servant or employe of said employer for damages for personal injuries, etc.'Our Courts are fairly uniform in holding that in view of this provision, the remedy given by the Workmen's Compensation Law is exclusive and that the employee has no right of action against his employer on account of bodily injuries sustained in the course or scope of the employment (except for injuries resulting from an intentional or willful act of the employer), even though the injury complained of may not be compensable under the Workmen's Compensation Law.Gordon v. Travelers Ins. Co., Tex.Civ.App., 287 S.W. 911, err. ref.;Montgomery v. United Salt Corp., Tex.Civ.App., 112 S.W.2d 494, err. dis.;Huckabay v. Hughes Tool Co., Tex.Civ.App., 122 S.W.2d 233, err. dis.;Robertson v. C. A. Bryant Co., Tex.Civ.App., 127 S.W.2d 549, err. dis. 'judgment correct.'See alsoTourville v. United Aircraft Corp., 2 Cir., 262 F.2d 570.

In Gordon v. Travelers Ins. Co., supra, it was held that an employee had no valid claim under the Workmen's Compensation Law for injuries resulting from disease caused by his inhaling poisonous fumes while in the course of his employment; also that, not having given the notice mentioned in Sec. 3a, Art. 8306, V.A.T.S., the employee had waived his right of action at common law against his employer.The Supreme Court refused writ of error and we have found no case, and have been cited to none, questioning the validity of those holdings.

Appellant also contends that the existence of the Workmen's Compensation Insurance policy was not established by the affidavit of the Company's Insurance and Retirement Manager, wherein he stated under oath that during the year 1952 the Company was insured under such a policy written by Liberty Mutual Insurance Company, because a sworn or certified copy of the policy was not attached to the affidavit as required by subdivision (e) of Rule 166-A, Vernon's Texas Rules of Civil Procedure.No such objection was made in the trial court as required by Rule 90, Vernon's Texas R.C.P.; therefore we hold that the defect, if any, was waived.Employers Mutual Casualty Co. v. Lee, Tex.Civ.App., 352 S.W.2d 155, no wr. hist.;Wade v. Superior Ins. Co., Tex.Civ.App., 244 S.W.2d 893, err. ref.Especially would this be true when, as here, all appellees were trying to prove was the existence of the insurance coverage, not the details of the policy itself.Salinas v. Salinas, Tex.Civ.App., 77 S.W.2d 568, err. dis.

Appellant also takes the position that appellees failed to meet the burden of showing that her cause of action arose while she was an employee, suggesting that it arose at the time of the examination, at which time she was an invitee rather than an employee.It is our view that under the undisputed facts appellant's employment began on June 16, 1952, the date of the examination, and that the appellees could not have learned of the tuberculosis until at least three weeks thereafter, which would be the earliest time the cause of action could have arisen, and that appellant was indubitably an employee of the Company at that time.

But even if we were to consider that the cause of action arose at the very time of her physical examination, and before she actually began her work for the Company, we would be compelled to hold that, so far as the applicability of the Workmen's Compensation Law is concerned, she was an employee and subject to and covered by that Law while being given the physical examination.Ott v. Consolidated Underwriters(Mo.App.), 311 S.W.2d 52, andSmith v. Venezian Lamp Co., 5 A.D.2d 12, 168 N.Y.S.2d 764.

In the case before us, the physical examination was conducted on the employer's premises, not for the benefit of the applicant, but wholly for the benefit of the employer and under its direction and control.Therefore, it is clear that appellant was an employee when the duty arose, if it did, to tell her of her disease, regardless of whether that duty came into being at the time of the examination or at least three weeks later when her X-ray plates were read and interpreted.Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63;Heacker v. Southwestern Bell Telephone Co., 5 Cir., 270 F.2d 505.

Accordingly, we hold that appellant's right of action, if any ever existed, was extinguished by the Workmen's Compensation Law, Art. 8306, Sec. 3, V.A.T.S.

Did appellant have a cause of action?

That brings us to a consideration of the question raised by appellant's points of error one through five, seven and eight, wherein she assails the implied holdings of the trial court that it appeared as a matter of law, aside from the prohibition of Sec. 3, Art. 8306, V.A.T.S., that appellant had no cause of action against either the Company or Dr. Horgan.Appellant sues upon two alternative grounds: (1) that her tubercular condition was revealed to appellees by the examination of June 16, 1952 and that they were negligent in withholding and concealing this information from her and in not disclosing it to her; and (2) in the alternative, if they did not know of her tuberculosis they were negligent in failing to examine the X-rays and properly diagnose and identify the tuberculosis symptoms pictured thereon.The first ground raises the question of whether the employer and its physician owed appellant the duty to disclose known information concerning her health, while the second raises the question of whether the employer and its physician, having undertaken to examine her, owed her a duty to discover her tubercular condition.

In her brief appellant addresses herself only...