Texas Employers' Ins. Ass'n v. Wonderley

• Decision Date: 20 March 1929
• Docket Number: (No. 3190.)
• Citation: 16 S.W.2d 386
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. WONDERLEY et al.
• Court: Texas Court of Appeals

16 S.W.2d 386

TEXAS EMPLOYERS' INS. ASS'N v. WONDERLEY et al.

(No. 3190.)

Court of Civil Appeals of Texas. Amarillo.

March 20, 1929.

Rehearing Denied April 17, 1929.

Error from District Court, Wichita County; P. A. Martin, Judge.

Suit by the Texas Employers' Insurance Association against J. D. Wonderley and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Bullington, Boone, Humphrey & King, of Wichita Falls, for plaintiff in error.

Weeks, Morrow, Francis & Hankerson, of Wichita Falls, and Bryant & McLynn, of Sherman, for defendants in error.

HALL, C. J.

The defendant in error Wonderley and his attorneys recovered, before the Industrial Accident Board, against the plaintiff in error, an amount in excess of $500, and on October 28, 1927, the plaintiff in error filed this suit to set aside the award. All jurisdictional matters are alleged.

The defendant in error alleged in his cross-action: That on the 21st day of January, 1927, while in the employ of J. J. Perkins, engaged in drilling an oil well, he was injured by the falling of heavy machinery upon his left foot, crushing and bruising the fore part of his left foot and three toes. That at the time of his injuries he was receiving approximately $13 per day for his work. That after his foot was crushed some kind of infection set up in his left foot and leg and thereafter spread to his right foot and leg and other portions of his body, and, in order to save his life, his right leg was amputated half way between his knee joint and his hip. That the amputation was a result of diseases and infections naturally and proximately resulting from his injuries. That prior to said injuries he was a strong, robust man, in good health, and capable of performing manual labor, and since he has not been able to do any character of work and was totally and permanently incapacitated. That, by reason of his total and permanent incapacity, he was unable to earn a livelihood for his wife and himself. That the weekly compensation allowed him was insufficient for their support, and he prayed for a lump sum settlement.

By supplemental pleadings, the association denied that the defendant in error's condition was caused by the injuries received while working at the oil well, but was caused by what is known as diabetes (that is, that the defendant in error, prior to his injuries, had been suffering with a disease called diabetes, and that the amputation of his leg was the result of said disease); and, further answering, plaintiff in error states that such condition was brought about by some disease which the defendant in error had at the time of his injuries, that, if the said Wonderley, at the time when he was injured, had not neglected himself in the treatment of diabetes and had continued proper treatment, it would not have been necessary to have his leg amputated, and that the neglect of his condition and the failure to keep up the treatment for his trouble caused the disease which was a proximate and sole cause of all his present condition.

The court submitted the controversy upon special issues and upon the answers returned by the jury, the court rendered a judgment in a lump sum in the amount of $4,584.15, with interest at the rate of 6 per cent., in favor of Wonderley, and $2,292.07 in favor of his attorneys.

The substance of the first proposition urged is that, where the plaintiff in error alleged that, instead of Wonderley's condition being a result of any injury, it was brought about by some disease which the defendant had, and, where there was evidence upon the trial that disease germs other than those arising from the injury which probably brought about the condition of the complaining party, the court erred in failing to submit the following issue to the jury: "If you have answered defendant is permanently and totally disabled from performing labor, then find whether or not such condition was brought about solely and proximately by other causes than the injury to his foot on January 21, 1927."

The contention of the defendant in error is that the infection in his right knee, which resulted in the amputation of his right leg, was the result of infection of some kind in the wound caused by the crushing of his left foot and amputation of his toes. On the other hand, the plaintiff in error contended principally that the infection was the result of his diabetic condition.

The court submitted several issues upon appellee's theory that the infection was the result of the injuries to his foot and resulted in the loss of his leg; and, by other issues, submitted the appellant's theory that appellee's diabetic condition caused the infection and loss of his leg. The jury answered all the issues in appellee's favor. When the charge is construed as a whole, we think these two theories were correctly and fairly presented.

Under the allegation that, instead of Wonderley's condition being the result of any injury, "it was brought about by some disease which this defendant had," several doctors testified as experts. The substance of their testimony is that infection might get into the system and the blood stream through open wounds, sores, cuts, abrasions, boils, and the mucous lining of the stomach or bowels, and even through the hair follicles. Admit the truth of this testimony, still in the absence of any evidence tending to show any actual infection of the follicles, mucous surfaces, or the infection of any open sore, abrasion, or other avenue of infection, other than the injury complained of, the testimony does not warrant the submission of the special issue. No one testified that the appellee was ever infected through any such possible avenues. The only hint in the testimony that there was ever any opportunity for such infection, other than the injured foot of appellee, is the evidence of Dr. Ogden, who stated he treated appellee for carbuncle, erysipelas, and diabetic symptoms in August and September, 1923, which was more than three years prior to the date of the injury, and his testimony further is that the carbuncle and erysipelas yielded to his treatment and the symptoms disappeared. Because there was no evidence of any probative force tending to support the requested issue, the court did not err in refusing to give it. Texas Employers' Ins. Ass'n v. Drummond (Tex. Civ. App.) 267 S. W. 335.

The appellant complains because the several issues inquiring whether the injury, "together with the infection resulting therefrom, if any," concurred with Wonderley's diabetic condition in producing the several results shown, failed to inquire whether the infection naturally resulted from the wound, and it is insisted that the failure of the court to charge that such infection, if any, must naturally result from the wound, probably led the jury to believe that they could answer said issues favorably to appellee, even though the infection did not naturally arise from the injury.

A sufficient answer to this contention is that there was no evidence tending to show that there was any unnatural infection. R. S. art. 8309, defines the term "injury" used in the Workmen's Compensation Law as "damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom." There is no evidence that the infection had any independent or unusual origin. Infection is the natural result of the wound whether it is "usual or unusual, if there is a direct causal connection between the injury and the disease, so that the disease is directly attributable to the injury." Bramble v. Shields, 146 Md. 494, 127 A. 44; Dickson Construction & Repair Co. v. Beasley, 146 Md. 568, 126 A. 907; King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S. W. 3, 53 A. L. R. 1086; Bethlehem Shipbuilding Corporation v. Industrial Accident Commission, 181 Cal. 500, 185 P. 179, 7 A. L. R. 1180, and note; Texas Employers' Ins. Ass'n v. Drews (Tex. Civ. App.) 297 S. W. 630; Consolidated Underwriters v. Free (Tex. Civ. App.) 253 S. W. 941.

On May 28, 1927, Wonderley wrote the commissioner of insurance at Austin, giving notice that he had been injured on January 21st while working for J. J. Perkins. A copy of this letter was introduced, with the following indorsement shown on it: "Industrial Accident Board. Received June 1, 1927, State of Texas." There is a certificate attached to the copy that it is a full, true, and correct copy of a letter dated May 28th, giving notice of injury. The appellant objected to the...