Texas Emp. Ins. Ass'n v. Etheredge

• Decision Date: 10 November 1954
• Docket Number: No. 4523,4523
• Citation: 272 S.W.2d 869,154 Tex. 1
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Petitioner, v. E. A. ETHEREDGE, Respondent.
• Court: Texas Supreme Court

Page 869

272 S.W.2d 869

154 Tex. 1

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Petitioner, v. E. A. ETHEREDGE, Respondent.

No. 4523.

Supreme Court of Texas.

Nov. 10, 1954.

Rehearing Denied Dec. 15, 1954.

Burford, Ryburn, Hincks & Ford and Howard Jensen, dallas, for petitioner.

Caldwell, Baker & Jordan, Claude Williams, Dallas, for respondent.

GARWOOD, Justice.

In this final stage of a workmen's compensation case, without much benefit of precedent, we have first to decide whether there is evidence to support the judgment awarded the claimant, Etheredge, by both courts below on account of the occupational disease of silicosis against the petitioner compensation insurance carrier for respondent's last employer, Trojan Foundries, under Sec. 24 of Art. 8306, Vernon's Tex.Civ.Stats.Ann. Subject to this question, there is the further one of error in the trial court's refusal of petitioner's requested issues as to aggravation of respondent's silicosis by tuberculosis, Sec. 22 of the same article.

The mentioned sections and others not clearly irrelevant are for convenience set out at length in the footnote. ¹ For the opinion of the Court of Civil Appeals, see 263 S.W.2d 815.

Respondent's employment with Trojan Foundries, which was terminated by his disability around November, 1951, began about eleven months previously, but included only seven or eight months of work with sand molds and cores for metal castings, an avocation of which silicosis is 'characteristic' Sec. 25 supra, and which he has pursued for many different employers almost continuously throughout a working life of nearly forty years.

He pleaded primarily, and supported with evidence, a claim of industrial accident consisting of a fall in early September, 1951, at the Trojan plant, which allegedly caused, or activated a dormant condition of, disabling tuberculosis (not an occupational disease). The jury, however, found that the accident, though occurring, did not produce disability, and this phase of the case is ended.

On the alternative claim of occupational silicosis the jury found permanent partial disability to exist therefrom, and also made the necessary findings to satisfy the requirements of Sec. 25, supra, and also those of Sec. 26(b) to the effect that respondent 'during the ten (10) years immediately preceding the date of incapacity the employee has been exposed to the inhalation of silica dust * * * over a period of not less than five (5) years * * *.' These findings are not now questioned or questionable. What is questioned, and vigorously, is the finding made pursuant to Sec. 24, supra, that respondent, in his final and relatively brief employment with Trojan, was (to quote from Special Issue No. 12) 'injuriously exposed to silica dust.' In this behalf, there being no statutory explanation of the relevant language of Sec. 24 to the effect that '* * * the employer in whose employ the employee was last injuriously exposed to the hazards of such disease shall be deemed the employer * * *,' the trial court, without objection from either party, instructed the jury that 'injuriously exposed' meant 'an exposure or contact with the dangers of silicosis which causes silicosis, or excites, accelerates or aggravates a pre-existing condition of silicosis.'

It was also found that the respondent's tuberculosis, of which medical evidence of both parties showed him to suffer at least a moderate case, and to which the petitioner's evidence attributed whatever disability the respondent might have, '* * * was aggravated * * * or * * * contributed to by silicosis'; and that 'the percentage * * * that such silicosis aggravated * * * or * * * contributed to such tuberculosis' was '5%'. These findings were treated by the trial court as requiring a deduction, under Sec. 22, supra, of five per cent of the award otherwise corresponding to the disability found to exist, and that ruling is not questioned by the respondent, although in the same connection the petitioner raises the secondary question first above mentioned and hereinafter treated.

Before discussing the merits, it should not doubt be observed that the respondent's contest of our jurisdiction to review the case is plainly without merit. Of the several subdivisions of Art. 1728, Vernon's Tex.Civ.Stats.Ann., invoked by the petitioner, No. 6 is clearly applicable, and the corresponding 'Statement of Jurisdiction', which the respondent criticizes for not specifying the alleged error of law committed below, is in the exact wording suggested by Rule 469, Tex.Rules Civ.Proc. The rule thus dispense with including points of error in the jurisdictional statement-evidently because its further provisions require the points to be listed in a later portion of the petition.

True, petitioner's Point 1 (to the effect that the respondent-plaintiff has not 'met the burden of showing that he was INJURIOUSLY exposed to silicosis while in the employ of' the insured employer) does not voer-exactly state the law question of 'no evidence', of which we have jurisdiction, as distinguished from the fact question of 'against the overwhelming weight and preponderance of the evidence' (often referred to as 'insufficiency of the evidence') which is final in the Court of Civil Appeals. But we have ample discretion and no difficulty to determine from the rest of the petition, including the prayer for rendition of final judgment against the respondent, that the law question is presented. The latter was obviously the subject of the ruling of the Court of Civil Appeals which is complained of, since that court expressly applied the rule of looking only at the evidence favorable to the verdict. This rule, while applicable to the law question, is definitely not applicable to the fact question, which requires the Court of Civil Appeals to consider and weigh all of the evidence-although in a scale quite different from that applicable to the jury. See In re King's Estate, 150 Tex., 662, 244 S.W.2d 660; 30 Tex.L.Rev. 803.

Passing now to the merits, Sec. 26, supra, defines silicosis as 'the characteristic fibrotic condition of the lungs caused by inhalation of silica dust.' Actually it is less a disease than a progressive abnormality or injury due to the gradual accumulation in the lungs of tiny particles of silica dioxide ('free silica') so small as to be invisible to the naked eye and to defeat nature's protective devices of hair filters and moisture in the respiratory organs and so numerous as eventually to exceed nature's power to absorb or tolerate them. They, and the irritation they engender, cause nature to build up corresponding pulmonary areas of hard tissue and to this extent incurably to alter and impair the normal structure and function of the lungs.

Silicosis differs from tuberculosis in that the latter involves the operation of a germ as distinguished from a mechanical and perhaps chemical irritation, but both involve something in the nature of permanent scars on the lungs, fatigue, shortness of breath and cough, and tuberculosis is far more prevalent among silicotics than among people generally. Respondent's medical evidence in the main described his condition as a combination of both illnesses, the tuberculosis being of quite recent origin and moderate degree, while, as stated, the evidence of petitioner attributed the entire disability to tuberculosis.

The character of silicosis as an accumulation, and a mechanical and chemical diffusion, of foreign matter, and the consequently slow process whereby it develops, ordinarily render somewhat speculative the determination of (a) the time of its occurrence as a status properly to be diagnosed as silicosis and (b) the period of employment to which it is properly chargeable. Indeed its actual diagnosis ordinarily must be based in good part upon a history of exposure to silica dust in addition to symptoms afforded by X-ray examination and otherwise. The presence in the lungs of some free silica does not necessarily constitute silicosis or render its occurrence inevitable, because nature can absorb or 'tolerate' a certain amount. And, depending upon how much exposure had theretofore occurred, a person with some accumulation of free silica might then and there withdraw from further exposure and either develop silicosis within the ensuing few years or not ever develop it. Evidently even where silicotic scars or areas have developed, the affected party is not necessarily disabled. For various purposes the time element is obviously important. A period of several years freedom from silicosis ensuing upon exposure but without further exposure, strongly indicates that the 'disease' will not occur in the absence of additional exposure. A long exposure (5 to 20 years) is far more likely to produce it, or aggravate it if already in existence, than a short one and is generally conceded to be essential to contracting it, although by respondent's expert testimony it could be contracted in 'less than 2 years' in exceptional cases. The time element qualifies, and is itself heavily qualified by, the density of concentration of free silica constituting the exposure. However, according to what may be described as prevailing scientific opinion-whether agreed to by all experts in the field or fixed beyond possibility of change, we know not-the concentration of the microscopic particles must be at least as great as 5 million to the cubic foot of air in order that exposure thereto may be harmful.

All of the foregoing seems rather clear from the expert testimony produced by each party to the suit and much of it is reflected in the statute itself. Sec. 25, supra, denies compensation where the incapacity first arises three years or more after the 'last injurious exposure * * * in such employment'. Sec. 26(b) practically amounts to such a denial, unless there has been an exposure 'to the inhalation of silica dust' for the 5-out-of-10-year period just preceding disability. Sec. 26(c) permits full...