Travelers' Ins. Co. v. Smith

• Decision Date: 10 November 1924
• Docket Number: (No. 1135.)
• Citation: 266 S.W. 574
• Parties: TRAVELERS' INS. CO. v. SMITH et al.
• Court: Texas Court of Appeals

266 S.W. 574

TRAVELERS' INS. CO. v. SMITH et al.

(No. 1135.)

Court of Civil Appeals of Texas. Beaumont.

November 10, 1924.

Rehearing Denied November 26, 1924.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Action by the Travelers' Insurance Company against Mrs. Essie Smith and another to set aside an award made under the Workmen's Compensation Act in favor of defendants by the State Industrial Accident Board. From a judgment for defendants, plaintiff appeals. Affirmed.

Wistner & White, of Port Arthur, and J. A. Harrison, of Beaumont, for appellant.

Mooney & Smith, of Woodville, and J. E. Rose, of Port Arthur, for appellees.

HIGHTOWER, C. J.

This action was commenced in the district court of Jefferson county by appellant as plaintiff against the appellees to set aside an award made in favor of appellees by the Industrial Accident Board of this state on a claim filed with that board by appellees for compensation as beneficiaries of Earl Smith, deceased, who was the husband of Mrs. Essie Smith and father of Annie Myrle Smith, a girl child eight years of age, who is the other appellee in this case. Earl Smith was an employee of the Gulf Refining Company at Port Arthur, Tex., and while engaged in the discharge of his duties in the course of his employment for that company at its gas plant at Port Arthur, on October 26, 1922, late at night, he was gassed, or inhaled chlorine gas, which was there being manufactured, an explosion of which was caused by some part of the machinery suddenly getting out of order. Deceased was removed from the gas plant to the hospital in an ambulance, as soon as one could be procured, and he remained in the hospital until the 29th of October following, a little over two days, and was then removed to his home. On November 23d following, deceased became very ill and a physician was called to treat him, who found that deceased was at that time suffering with double lobar pneumonia (pneumonia in both lungs), from which disease the testimony shows without dispute he died on the 2d day of December following.

The Gulf Refining Company had insured its employees, including deceased, in keeping with the Workmen's Compensation Act of this state, and appellant here was carrying the policy of insurance.

After Smith's death, due notice was given thereof to all parties concerned, and appellees, as Smith's beneficiaries, made claim to appellant for compensation, as provided by the act. Appellant refused the claim and denied liability on the ground that Smith's death was not the result of an injury, or caused by an injury received by him in the course of his employment, as the term "injury" is defined in the Workmen's Compensation Act, and thereupon appellees filed their claim with the Industrial Accident Board, which board, after due proceedings had, made its award in favor of appellees for $15 per week for a period of 360 weeks.

Appellant gave due and proper notice that it would not abide by the award of the board, and in due time filed this suit, as we have stated, to set aside the award.

Upon trial in the district court with a jury, whose verdict consisted of answers to special issues, judgment was rendered in favor of the surviving widow of deceased and her attorneys, and the minor, Annie Myrle Smith, and her attorneys, for $15 per week for a period of 360 weeks, one half of which was awarded to the widow and her attorneys, and the other half to the minor and her attorneys; but the judgment provided that the amount awarded to the minor and her attorneys should be redeemed by appellant in a lump sum, which was fixed by the judgment at $2,240.11, and from this judgment as a whole this appeal is prosecuted.

Appellant has advanced a number of propositions for reversal of the judgment, based upon proper assignments of error, the first of which relates to the trial court's refusal to sustain a special exception interposed by appellant to the pleading; but we will first dispose of the assignments and propositions which go to the merits, and the first of these is that the trial court was in error in refusing to peremptorily instruct a verdict for appellant.

Under this proposition, it is contended by appellant that the undisputed evidence in this case showed that deceased died of a disease known as lobar pneumonia, and it further contends that the undisputed proof showed that lobar pneumonia is not a disease which did in this instance, or could in any instance, result naturally from the inhalation of chlorine gas, and that therefore, under the provision of the Workmen's Compensation Act of this state, the disease of which Earl Smith died was not an injury or personal injury in contemplation of the act, or naturally resulting from an injury or personal injury in contemplation of the act, and that therefore the court should have instructed the verdict in appellant's favor.

The statute defines "injury" or "personal injury" as follows:

"The terms `injury' or `personal injury' as used in this act shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom." Article 5246 — 82, pt. 4, subd. 5, Complete Texas Statutes.

It is true, as contended by appellant, that the undisputed proof in this case shows that lobar pneumonia does not usually and ordinarily result from the inhalation of chlorine gas. This proof was made by all the physicians who testified in the case. None of them, prior to this accident, had ever known or heard of lobar pneumonia resulting from the inhalation of chlorine gas. Some of them testified that in rare instance the inhalation of chlorine gas had resulted in bronchial pneumonia, which is a disease of the bronchial tubes, but not of the lungs. Now, in view of such state of the evidence, appellant contends that the disease of which Earl Smith died was not, and could not be, an injury or personal injury or the natural result of an injury or personal injury, as that term is defined by the statute. Counsel for appellant in this connection earnestly contends that, in order for the disease (lobar pneumonia) of which Earl Smith died to be the natural result of the inhalation of chlorine gas, it was incumbent upon appellees to prove that such disease usually and ordinarily, in the natural course of things, resulted from the inhalation of chlorine gas, and that appellees having failed to make such proof, but on the contrary all the evidence showing without contradiction that the disease of which Smith died was not such a disease as usually and ordinarily, in the natural course of things, resulted from the inhalation of chlorine gas, such injury and disease, though in fact resulting in Smith's death, is not compensable, and the court should have so held and instructed a verdict in its favor. We cannot agree with appellant's able counsel in this contention. To do so would necessarily read into the Workmen's Compensation Act something that was never contemplated by the Legislature in passing the act. In other words, we would have to read into the act one of the essential elements of actionable negligence, that is, the element of proximate cause, before an injury sustained by an employee admittedly in the course of his employment and discharge of his duties would be compensable, and this was never intended by the Legislature, as is manifest in the act from its caption to its conclusion. On the contrary, the act contemplates that all injuries received by an employee in the course of his employment and while in the discharge of his duties, with certain stated exceptions shall be compensated, whether such injuries be proximately caused by some act or omission on the part of the employer or not, and that in case of the death of the employee from a disease which is shown to be the exciting and efficient cause of the employee's death, his beneficiaries are entitled to compensation, though they be unable to prove that such death was proximately caused by the injury received, as the term "proximate cause" is used in the law of...