Scott v. Liberty Mut. Ins. Co.
| Decision Date | 25 June 1947 |
| Docket Number | No. 9650.,9650. |
| Citation | 204 S.W.2d 16 |
| Parties | SCOTT v. LIBERTY MUT. INS. CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, 126th District, Travis County; Roy C. Archer, Judge.
Suit under Workmen's Compensation Act by Charley Scott against Liberty Mutual Insurance Company to set aside an award of the Industrial Accident Board denying plaintiff compensation for loss of his right eye. From a judgment for defendant, plaintiff appeals.
Affirmed.
Louis Scott Wilkerson, of Austin, for appellant.
Hart & Brown, by James P. Hart. all of Austin, for appellee.
This is a workman's compensation suit brought by the injured employee for the loss of his right eye. Trial was to a jury, but at the close of the testimony, upon appellee's motion, the trial court instructed a verdict for the defendant and rendered a take nothing judgment; hence this appeal.
The only question presented is whether there was any evidence of causal connection between the accident involved and the subsequent loss by appellant of his right eye.
Only three witnesses testified—the appellant and the two doctors who treated him. The material facts, without substantial dispute, are: On March 27, 1944, Charley Scott was employed at the Magnesium plant a few miles northwest of Austin. On that date, while working on a truck hauling chemical cans in a high wind, "something blowed in my eye" which "burned just like fire and kept on burning." He was given first aid treatment at the plant for about ten days and then sent to Dr. Sam Key, an eye specialist, who began treating him on April 11, 1944, and finally discharged him on May 17, 1944. Dr. Key's testimony, not contradicted, was that when Charley first came to him he had a fleshy growth, nonmalignant, of common occurrence, known to the profession as a pterygium, which encroached on the cornea or clear part of the eye. This growth had developed gradually over several years, in Dr. Key's opinion. Charley was then suffering from general irritation or inflammation over his entire right eye, designated as conjunctivitis. Dr. Key treated this latter condition, which, according to his testimony, had by May, 17, 1944, cleared up and the eye had returned to normal, except for the pterygium which remained.
Meantime the Magnesium plant had closed down and Charley worked at Bergstrom Field as a porter for 4 or 5 months; then went to the shipyards in California for about 9 months, returning to Austin in February, 1946. He then went to Dr. Miears, who found "a very unusual looking tumor across the front of the eye." A portion of this tumor was removed, tested and found to be cancerous, and "because it was a fairly early cancer" Dr. Miears removed Charley's right eye to save his life.
Appellant, between the date of the accident on March 27, 1944, and the removal of his eye in February or March, 1946, had never been examined, nor treated by any other physician than Drs. Key and Miears. His testimony as to the condition of his eye during this interval was as follows:
Dr. Key's testimony to the effect that the pterygium which he found in Charley's eye on April 11, 1944, was not then malignant is not disputed. Charley stated that prior to the accident, he had never had any trouble with his eye. Both of the doctors testified that in their opinion the accident of March 27, 1944, and the resultant inflammation or irritation then caused by it, had nothing to do with the cancerous condition found to exist approximately two years later. Both physicians also testified that the cause of cancer is not scientifically known; that one theory of causation is that where a non-malignant tumor exists a continuous or chronic irritation thereof might cause it to become malignant or cancerous. That is, one theory of causation is that chronic irritation has an accessory or predisposing influence in causing a non-malignant tumor to become malignant.
Appellant contends that the jury was not conclusively bound by the expert opinions of the doctors. That since the cause of cancer is not known, said doctors' testimony that it was possible for chronic irritation over a prolonged period of time of a non-malignant growth to make it malignant, when taken with appellant's testimony that continuously after the accident of March 27, 1944, his eye felt like it had something in it and he kept trying to get it out, the jury could have concluded that said accident was a...
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Houston General Ins. Co. v. Pegues
...writ); Parker v. Employers Mutual Liability Ins. Co. of Wisconsin, 440 S.W.2d 43 (Tex .Sup.1969); Scott v. Liberty Mutual Ins. Co., 204 S.W.2d 16 (Tex.Civ .App., Austin 1947, Ref'd, N.R.E.). Since the only medical testimony in the case at bar was that appellee's disability was due to a mali......
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Insurance Company of North America v. Myers
...Texas Employers' Ins. Ass'n, 318 S.W.2d 921 (Tex.Civ.App.--San Antonio 1958, writ ref'd n.r.e.); Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Tex.Civ.App.--Austin 1947, writ ref'd n.r.e.); Trinity Universal Ins. Co. v. Walker, 203 S.W.2d 308 (Tex.Civ.App.--Austin 1947, writ ref'd n.r.e.) ......
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Tyler Mirror & Glass Co. v. Simpkins, 220
...This rule has been recognized in a variety of decisions in this jurisdiction. The leading case on the point is Scott v. Liberty Mut. Ins. Co., 204 S.W.2d 16 (Tex.Civ.App.1947), writ ref., n.r.e. In that case, the plaintiff claimed Workmen's Compensation benefits as the result of an accident......
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Parker v. Employers Mut. Liability Ins. Co. of Wis., B--529
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