Solomon v. Massachusetts Bonding & Ins. Co.

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Citation347 S.W.2d 17
Docket NumberNo. 13742,13742
Decision Date03 May 1961

Page 17

347 S.W.2d 17
Reynaldo G. SOLOMON, Appellant,
No. 13742.
Court of Civil Appeals of Texas, San Antonio.
May 3, 1961.
Rehearing Denied May 31, 1961.

Rudy Rice, Frank R. Southers, San Antonio, for appellant.

Matthews, Nowlin, Macfarlane & Barrett, James D. Baskin, Jr., San Antonio, for appellee.

BARROW, Justice.

This is a workmen's compensation case. The action was brought by appellant, Reynaldo Solomon, to set aside an award of the Industrial Accident Board. Appellant in his trial petition alleged that while and during the time he was employed by Orkin Exterminating Company, Inc., from the year 1953 until about June, 1956, which employment included getting under houses and spraying and dispensing chemicals known as Penta and Chlordane, which were mixed with petroleum and petroleum products, for termite control, on January 1, 1954, he suffered an accidental injury. That while engaged in such employment and in spraying under a house at or near Eagle Pass, Texas, he was forced to breathe and inhale a large amount of such exterminating chemicals, and as a result thereof said petroleum or petroleum product got into appellant's lungs, poisoning his lungs, and causing him to develop pneumonia, polycythemia, severe clubbing of plaintiff's fingers and toes, and severe damage to his lungs. That as a result of such injuries and damage to his lungs, appellant's lungs were weakened, resulting in and causing him to develop tuberculosis. Appellant further alleged that while so working during said dates he sustained an occupational disease of poisoning by petroleum and petroleum products. Appellee answered by general and special denials.

The trial was to a jury, but at conclusion of appellant's evidence in chief, appellee

Page 19

filed a plea to the jurisdiction of the court based upon two grounds: (1) That there is a material and fatal variance between the cause of action sued on and the claim made by him before the Industrial Accident Board; (2) that appellant failed to give notice to his employer or to appellee within thirty days, and failed to file his claim for compensation with the Industrial Accident Board within six months from the date of the injury or the date of the first distinct manifestation of occupational disease, and continuously so failed until February 28, 1958, and as a matter of law failed to show good cause for such failure. The court sustained the plea in abatement and dismissed appellant's suit.

Appellant relies for reversal on three points: (1) That the court erred in sustaining the plea to the jurisdiction because there was no fatal variance between the claim made to the Industrial Accident Board and that sued on herein; (2) that the court erred in holding that there was such material...

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30 cases
  • Twin City Fire Ins. Co. v. Gibson, 8237
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 22 Noviembre 1972
    ...and Castro Counties are adjacent to each other. Appellant relies upon the case of Solomon v. Massachusetts Bonding & Insurance Company, 347 S.W.2d 17 (Tex.Civ.App.--San Antonio 1961, writ ref'd) for the proposition that a variance in the time and location as stated in the claim before the B......
  • Olson v. Hartford Accident and Indemnity Company, B--2800
    • United States
    • Supreme Court of Texas
    • 1 Marzo 1972 an undesigned, untoward event traceable to a definite time, place, and cause. Solomon v. Massachusetts Bonding & Insurance Company, 347 S.W.2d 17 (Tex.Civ.App.1961, Page 860 writ refused); Frazier v. Employers Mutual Casualty Co., 368 S.W.2d 955 (Tex.Civ.App.1963, writ ref., n.r.e.); Whi......
  • Transportation Ins. Co. v. Maksyn, B-7820
    • United States
    • Supreme Court of Texas
    • 28 Febrero 1979
    ...859 (Tex.1972); Texas Employers Ins. Ass'n v. McKay, 146 Tex. 569, 210 S.W.2d 147 (1948); Solomon v. Massachusetts Bonding & Ins. Co.,347 S.W.2d 17 (Tex.Civ.App. San Antonio 1961, writ ref'd). The first sentence also extends coverage to and includes damage or harm to the physical structure ......
  • Mercer v. Phillips Natural Gas Co., 3-86-112-CV
    • United States
    • Court of Appeals of Texas
    • 9 Marzo 1988
    ...A question of jurisdiction, however, can be raised at any time and cannot be waived. Solomon v. Massachusetts Bonding and Insurance Co., 347 S.W.2d 17, 20 (Tex.Civ.App.1961, writ ref'd). Only a lack of jurisdiction will subject a judgment to successful collateral attack. Hodges, Collateral ......
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