Travelers Ins. Co. v. Fagan

• Decision Date: 12 March 1963
• Docket Number: No. 7474,7474
• Citation: 366 S.W.2d 885
• Parties: The TRAVELERS INSURANCE COMPANY, Appellant, v. Novelle R. FAGAN et vir, Appellees.
• Court: Texas Court of Appeals

Page 885

366 S.W.2d 885

The TRAVELERS INSURANCE COMPANY, Appellant, v. Novelle R. FAGAN et vir, Appellees.

No. 7474.

Court of Civil Appeals of Texas, Texarkana.

March 12, 1963.

Rehearing Denied April 16, 1963.

Moore & Lipscomb, Paris, for appellant.

Leslie Echols, C. V. Flanary, Jr., Paris, for appellees.

CHADICK, Chief Justice.

This is a Workmen's Compensation Law case. Consonant with jury answers to special issues a judgment was entered in the trial court awarding an injured worker the sum of $4,048.32 for 78 weeks of temporary total incapacity to labor, and to reimburse medical and hospital expense.

The injured employee was a married woman. Her husband did not join in the prosecution of her claim before the Industrial Accident Board, but became a party plaintiff on the appeal from the Board's award. The insurer, the appellant here, excepted to the court action and moved to abate the suit. The insurer's first point of error is directed to the action of the trial court in overruling such exception and plea.

The precise question has not had the attention of a Texas appellate court. A similar but slightly more elaborate question, in that the husband was not a party to proceedings either before the Industrial Accident Board, or in the trial court, was before the United States District Court for the Northern District of Texas in Lynch et al. v. American Motorists Ins. Co., 101 F.Supp. 946. Very similar also, was a question answered in Texas Unemployment Compensation Commission v. Frank, Tex.Civ.App., 229 S.W.2d 399. In the latter case a married woman's claim was processed by the Texas Unemployment Compensation Commission without the woman's husband being joined in the proceeding. On her appeal to the county court a plea in abatement was filed and thereupon the husband joined in the lawsuit. In each of these cases it was held that the court had jurisdiction. The reported opinions contain an extensive discussion of the rationale of the decisions. The reasoning will not be repeated; it is sufficient to say that insofar as this particular case and its factual circumstances are concerned, the Workmen's Compensation Law, Art. 8307, Sec. 5, Vernon's Tex.Civ.St., authorizes the employee and her husband to prosecute this suit. The mentioned Article allows an 'interested party' not satisfied by a final ruling of the Industrial Accident Board to bring suit to set aside such ruling. The first point of error is overruled.

After carefully summarizing the evidence, the insurer argues under its next four points that (1) compensable injury was not shown by the evidence, (2) the undisputed physical facts show the workman was not injured by cold air blowing on the top and side of her head, and (3) the jury's findings are contrary to the great weight and preponderance of evidence.

Compensability. Presently, for the purpose of reviewing the elements of a compensable injury, it will be assumed that an injury followed by incapacity to labor was proven by Mrs. Fagan. Under another heading the question of the occurrence of an injury will be noticed. Her injury is compensable under the Workmen's Compensation Law if it was inflicted while she was engaged in the performance of her duties as an employee, and a cause of her injury was a condition (exposure to a hazard) associated with (originating in) her employer's work. Texas Employers' Ins. Ass'n. v. Mincey, Tex.Civ.App., 255 S.W.2d 262, W/R.; American Motorists Ins. Co. v. Steel, Tex.Civ.App., 229 S.W.2d 386, W/R.; Cassell v. United States Fidelity & Guaranty Company, 115 Tex. 371, 283 S.W. 127, 46 A.L.R. 1137; In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306; Arts. 8306, Sec. 20, 8309 V.T.C.S., see also Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581.

The following is a brief summary of evidence in its most favorable aspect respecting compensability. Mrs. Fagan was employed by Hollywood-Vassarette, Munsingwear Incorporated as a power sewing machine operator and placed at her employer's worktable in an air-conditioned room. Air, refrigerated to a temperature of 60 degrees, was emitted at a rate of 900 cubic feet per minute from a vent located ten feet above floor level and approximately twelve feet distant from Mrs. Fagan. Within a day or two after Mrs. Fagan began work in August, the louvers in the vent were changed and so arranged that a draft or current of air was focused upon her head. The day the change was made she became sensitive to the cold air current and developed a headache, which she treated with aspirin.

The following day the stream of air made her more uncomfortable, and besides pain in the right side of her head, her neck began stiffening, and ordinary movement in that region became painful and difficult. Within less than a week she underwent medical treatment for the pain in this region of the right side of her head and neck, and an additional symptom appeared, a swelling in her neck. The swelling, a 'pone', arose in the neck region near the base of her skull. She fixed the date of the change in the vent louver and her first pain as August 2nd or 3rd, 1960. Thereafter her pain and disability rapidly progressed, resulting in...