Texas Employers' Ins. Ass'n v. Mitchell

• Decision Date: 15 April 1930
• Docket Number: No. 3842.,3842.
• Citation: 27 S.W.2d 600
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. MITCHELL.
• Court: Texas Court of Appeals

27 S.W.2d 600

TEXAS EMPLOYERS' INS. ASS'N v. MITCHELL.

No. 3842.

Court of Civil Appeals of Texas. Texarkana.

April 15, 1930.

Rehearing Denied April 24, 1930.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Action by the Texas Employers' Insurance Association against Mrs. Ella Mitchell to set aside an award by the Industrial Accident Board wherein defendant filed a cross-action. Judgment for defendant, and plaintiff appeals.

Modified, and as modified affirmed.

The appellee claimed to have been injured through infection following vaccination, and was awarded weekly compensation therefor. The appellant did not consent to abide by the decision and ruling of the Industrial Accident Board, and instituted the present action to set aside the award as made by the board. The appellee made answer thereto and also filed a cross-action.

It appears from the evidence that the Pool Manufacturing Company, a corporation, operated a plant at Sherman, Tex., making work garments and dress shirts. Among the five hundred employees working at the plant was the appellee, Mrs. Mitchell. She was employed as a garment worker, operating a machine making and sewing pockets in work pants. In March, 1928, a number of cases of smallpox developed in the city of Sherman, and all the operatives of the plant were directed by the company's manager to be vaccinated.

The testimony of the manager, which is undisputed, is quoted, as far as pertinent, namely: "I live in Sherman, Texas, and I am the industrial engineer for the Pool Manufacturing Company. During March and April, 1928, I held the official position of production manager. I have been employed there about nine years. I cannot give the exact number of people employed by the company during this period, but approximately 500 or 525 people. They are kept employed about 90 per cent. of the time. * * * I issued instructions to the employees of the Pool Manufacturing Company to be vaccinated in March, 1928. I gave such order to the employees to be vaccinated. I gave the instruction because of the number of cases of smallpox developed at the time in the town. Some of the operatives called my attention to the number of cases of smallpox. No member of the city board of health or the state board of health discussed the proposition with me, so far as I remember it. I told the employees it would be necessary for all of them to be vaccinated or bring a certificate from a physician stating that vaccination was not necessary—either that or to lay off until such time as the smallpox epidemic or scare had passed over. I did not obligate myself to pay for the vaccination. I saw the Neathery Clinic and made arrangements through Dr. Neathery to make to any operative who cared to go to his clinic a special rate for the vaccination. I made arrangements with the Nall Drug Company for a special price on the vaccine. The total cost of the vaccine and the vaccination was 40 cents. Some of the employees paid the doctor as they were vaccinated for the work and the vaccine; and other employees had the price charged to the company and deducted from their pay checks. No, the company did not retain out of the pay checks anything more than the 40 cents for that proceeding. I did not receive any remuneration, and the company did not; it was just an accommodation to the ones being vaccinated. I did not issue any instructions for them to go to any particular doctor. I did advise them that I had made the arrangement for them as stated, but that they were free to go to their own family physician or to any other doctor they chose. There was nothing compulsory about their going to the Neathery Clinic for the vaccination. Everybody that worked for the Pool Manufacturing Company was vaccinated at that time."

Mrs. Mitchell testified as follows: "I was vaccinated for smallpox on March 23, 1928. Dr. Enloe, of Sherman, vaccinated me. I was told to be vaccinated by Mr. Roger Case, who worked for the Pool Manufacturing Company and who was foreman of the company over the whole plant. There was a bunch of us employees that he told to be vaccinated; I don't know how many were present at that time. Mr. Roger Case told us to be vaccinated Friday or not to come back to work on Monday morning. Dr. Enloe was suggested as a doctor for us to allow to vaccinate us. Mr. Roger Case told us it would cost 40 cents and that the Pool Manufacturing Company would take it out of our checks and pay Dr. Enloe. * * * The cost of the vaccination was taken out of my pay check. I paid for the vaccination, and it cost me 40 cents. The plant closes work at five o'clock P. M. It was after the five o'clock hour when I came to the doctor's office to be vaccinated."

Mrs. Mitchell claimed that she sustained injuries from the infection following the vaccination, resulting in total permanent incapacity to do any kind of labor. She suffered stiffness of the right arm and neck. There were other witnesses corroborating her as to her injuries and the extent of the same.

Mrs. Mitchell testified about the cause of the injuries, namely: "I worked about a week after I had the vaccination. The doctor in vaccinating me scratched my arm with a quill which he called a `needle.' He scratched my arm with a needle, and just a little blood came to the surface. I worked about a week after that. My left arm was all swollen up and got red; the swelling came down to the wrist. My right arm began to swell. I was in bed nine weeks. I was vaccinated on the left arm, above the elbow. The Saturday after I was vaccinated I went home sick. I was vaccinated on Friday, March 23; I went sick on Saturday of the next week. The vaccination had been hurting all the time. While I was working, I was not able to work. The vaccination caused a coloration of the surface of the arm—that is, red and red streaks around and over my arm. It was swollen around the vaccination scab. That started in the next week, in three or four days. Saturday evening it so troubled me that I quit work. I had fever in it, and fever when I was working. I don't know just when the fever started, but in three or four days. I had fever every day, and not (only) when it began to swell up. The vaccination wound itself was red and swollen. The swelling around the vaccination continued six or seven weeks. * * * I was in bed from April 12 to June 10. It was a long time after that before I could leave the house. Mrs. Johnson nursed me every day. My mother was with me all the time. * * * The condition of my right arm is such that I cannot work with it. There is no movement at all in the wrist. My neck is in such condition that it is painful to me if I work. There is pain in my backbone. Both of my arms pain me. * * * I had never before this time had any trouble in the movement of my arms or wrists, or any of these troubles; I was in good health. I tried in September to do the same work I did before my injury, but I could not work."

There is no affirmative testimony that Mrs. Mitchell was exposed in any special way to the risk of infection by anything in the nature or place of the employment or work in the appellant's plant. Medical testimony was produced concerning the cause of the injury and the source of the infection. Such expert medical opinion was to the effect that some germ or infection entered Mrs. Mitchell's body through the vaccination wound, either in the vaccine or on the point of the needle used, or from somewhere else. The doctors who treated Mrs. Mitchell gave as their opinion, based on the condition they saw in the course of the treatment and "the history of the case at the time" she came to them, that the injuries could be due, and were due, to infection following the vaccination. There is medical opinion to the contrary—that the injuries were due to disease or infection which was unrelated to the vaccination. These latter doctors say the injury is rheumatism caused by bad teeth.

The court submitted the following special issues to the jury:

"Q. 1. Was the vaccination of Mrs. Ella Mitchell on the date in question the proximate cause of her injury?" Jury answer: "Yes."

"Q. 2. Did Mrs. Mitchell's injury, if any, result in total incapacity to work?" Jury answer: "Yes."

"Q. 3. Is such total incapacity to work, if any, permanent?" Jury answer: "Yes."

The further issues were submitted, namely:

"Q. 8. What was Mrs. Mitchell's average daily wage during the twelve months next preceding the date of her vaccination?" Jury answer: "4.16 2/3."

"Q. 9. What was (the amount of) Mrs. Mitchell's earnings during the twelve months next preceding the day of her vaccination?" Jury answer: "617.10."

"Q. 10. Should the defendant Mrs. Mitchell be paid her compensation in a lump sum?" Jury answer: "Yes."

The evidence warrants the jury findings in questions 1, 2, and 3. It appears that Mrs. Mitchell was not paid a daily wage or a salary; she was "a piece garment worker," and was paid "the price of $3.12½ a bundle." A bundle consisted of twenty-four pairs of pants. She was able, she stated, "to make up two bundles in a day and a half" by working eight hours a day, if the output of the plant furnished that much work for her to do. It was admitted, however, that the output of the plant was not of that quantity to provide her work enough for the whole of each day, but only partly so, during the twelve months previous to the time of the injury. She made up bundles as frequently as she had the piecework to do. She worked substantially the whole of the year. Whatever she earned she was paid at the end of each week, and her weekly checks varied according to the quantity of work done by her. It was agreed that she earned, during the whole of the year, the amount stated by the jury. The court entered judgment for appellee for compensation for 401 weeks, payable in a lump sum with 6 per cent. discount. The total amount as designated was $4,991.01.

Leachman & Gardere and R. T. Bailey, all of Dallas, for appellant.

Webb &...