Petray v. Travelers Ins. Co.

• Decision Date: 20 July 1965
• Docket Number: No. 7625,7625
• Citation: 393 S.W.2d 711
• Parties: Floyd J. PETRAY, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 711

393 S.W.2d 711

Floyd J. PETRAY, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.

No. 7625.

Court of Civil Appeals of Texas, Texarkana.

July 20, 1965.

Rehearing Denied Sept. 21, 1965.

Wm. V. Brown, Jr., Texarkana, for appellant.

Norman Russell, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellee.

CHADICK, Chief Justice.

This is a workmen's compensation case. The judgment of the trial court is reversed and the case is remanded for new trial.

The appellant, plaintiff in the trial court, Floyd J. Petray, sued appellee, defendant below, The Travelers Insurance Company, compensation insurer for his employer, International Creosoting & Construction Company. In the trial court when Petray had finished with the introduction of evidence a motion by the insurer for an instructed verdict in its favor was granted.

The appellee's counterpoints and cross-point of error will serve to put the main issue of this appeal in clear perspective and for that purpose are quoted, to-wit:

(Counterpoints) 'The trial court correctly granted Travelers' motion for instructed verdict because:

(a) Petray's petition failed to state a cause of action upon which recovery of workmen's compensation benefits could be based. He did not allege and prove the receipt of an occupational disease within the meaning of Article 8306(20) V.A.T.S., instead he claims workmen's compensation benefits for incapacity from Bronchitis (both chronic and asthmatic), Pulmonary Fibrosis, and Emphysema-none of these being among the occupational diseases appearing in the statute.

(b) Petray in the District Court claimed workmen's compensation benefits based upon the effects of arsenic, benzol, and chlorine poisoning, but in his claim before the Industrial Accident Board he made no claim for benefits upon this basis. He cannot assert one claim before the Industrial Accident Board and another and different claim in the District Court.'

(Crosspoint) 'Point 1: The trial court erred in overruling Travelers' Special Exceptions No. 1 and No. 2, both being directed to Petray's failure to allege facts upon which he could sustain a recovery for workmen's compensation benefits as a result of having an occupational disease.'

Mr. Petray filed a 'Notice of Injury from Occupational Disease and Claim for Compensation for Injury from Occupational Disease' with the Industrial Accident Board on a form furnished him by the Board. In answer to this question therein, 'Nature of Occupational Disease and Cause of Disease', Mr. Petray said, 'My disease is Asthmatic Bronchitis, Pulmonary Fibrosis and Emphysema. I have choking spells and cannot breathe well. The cause is from breathing the dust and irritants in the mill where I work'. With reference to the notice provisions of Art. 8307, sec. 4a in Texas Employers' Ins. Ass'n v. Bradshaw, 27 S.W.2d 314 (Ct.Civ.App.1930, writ ref.) it was said:

'* * * (T)he object of the provision of timely notice is to enable the insurer to make his own investigation of the facts upon which the employee grounds his claim for compensation. It seems equally obvious that in order to strictly comply with the statutory requirement the employee must, within the specified period, apprise the insurer of the time and nature of the accident as well as of the resulting injury.'

Very similar conclusions are expressed in Safety Casualty Company v. Brown, 229 F.2d 889; and Booth v. Texas Employers' Ins. Ass'n, 132 Tex. 237, 123 S.W.2d 322, op. adpt. In the latter case Commissioner Smedley said:

'It has repeatedly been held that, although one claim cannot be filed, with the board and another and different claim asserted in court, yet when the injury suffered is of that class of injuries, sometimes called general injuries, for which the compensation is based upon incapacity to work, and not of that class of injuries usually called specific injuries, for which the amount of compensation is fixed by the statute, a general description of the injury is sufficient in the claim made before the board, and that in the suit filed to set aside the award of the board the claim may be enlarged to include all injuries proximately resulting from the accident. Hartford Accident & Insurance Co. v. Choate, 126 Tex. 368, 373, 89 S.W.2d 205; Texas Employers' Insurance Association v. Knouff, Tex.Civ.App., 271 S.W. 633; Indemnity Ins. Company of North America v. Harris, Tex.Civ.App., 53 S.W.2d 631; Great American Indemnity Company v. McElyea, Tex.Civ.App., 57 S.W.2d 966. In each of the three cases last cited application for writ of error was refused.'

Occupational disease is not listed as one of the specific injuries enumerated in Art. 8306, Sec. 12, Vernon's Ann.Tex.Civ.St., so such disease must be placed in the general injury grouping. The question of primary importance in this appeal is whether or not the Petray notice and claim as quoted above meets the legal test of Notice to the Board of an occupational disease compensable under the Workmen's Compensation Law by giving a general description of the disease implicated. A question of this kind arising in an occupational disease case has not reached the appellate courts of Texas. The disposition of similar questions in general injury compensation cases, and the decisions of other jurisdiction in occupational disease cases, should be instructive and on examination should suggest the correct answer in this instance.

A workman's notice to the Texas Industrial Accident Board that described his impairment 'as injury to my spine and leg injury' was held sufficient, as a general description of injury, and in the appeal from the Board to a district court the workman was said to be entitled to plead and prove 'injury to the sacroiliac joint' in Indemnity Ins. Company of North America v. Harris, 53 S.W.2d 631 (Tex.Civ.App.1932, no writ). This case was later cited as an authority in Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205 (opinion adopted). The compensation claimant in Texas Employers' Insurance Ass'n v. Knouff, 271 S.W. 633 (Ct.Civ.App.1925, writ ref.) described her injury in her notice as '(d)islocation of one kidney and badly jarred all over'. On appeal from the Board to the court her petition stated 'that by reason of said fall her spine and the nerves and muscles connecting therewith were injured and bruised, and the nerves and muscles in the pelvic region and in her back were torn, bruised, lacerated, and strained'. The description in the Notice was held sufficient.

Texas Indemnity Ins. Co. v. Wilson, 281 S.W. 289 (Tex.Civ.App.1926, writ dism.) does not set out the description of the injury, the opinion saying the evidence in the trial court was meager as to the exact nature of the injury reported to the Industrial Accident Board, but the court said, '(I)t is evident it was the same claim, occurred at the same time, and grew out of the same accident, and on appeal to the courts appellee had the right to amplify and more fully develop his claim by pleading and evidence'. The nature of the injury reported to the Industrial Accident Board is 'hernia, also pains in back and left side' in Texas Employers' Ins. Ass'n v. Perry, 35 S.W.2d 1087 (Ct.Civ.App.1931, writ ref.). The insurance carrier in the district court moved to abate the workman's action, except for the specific injury of hernia. The claimant was permitted to plead and prove, besides a hernia, that 'his back and left side were wrenched and all bones, nerves, tissues', etc., were torn and injured. The court held the notice sufficient and that the workman might amplify, as he did, and make more specific the injuries he described in the claim presented to the Board.

For what it may be worth, the attitude of other jurisdictions will be examined. An employee filed with Michigan's Department of Labor and Industry an occupational disease law claim against the St. Johns Table Company. The claim stated the employee was suffering from 'the disease known as toxic encephalitis'. Accompanying the Notice was a physician's report that employee's toxic encephalitis arose from poisoning by wood alcohol and by benzol, a derivative of benezine, or its sequelae. Toxic encephalitis is not listed as an occupational disease in the Michigan statute, but poisoning by benzol, etc., is so classified. The Supreme Court of Michigan in Nicholas v. St. Johns Table Company, 302 Mich. 503, 5 N.W.2d 442, held the notice to be sufficient. In another Michigan case, Krzewinski v. Robert Gage Coal Co., 304 Mich. 63, 7 N.W.2d 223, it is stated that niceties of expression are not required, all that is necessary is that the employer have notice that...