Travelers Ins. Co. v. Burden

• Decision Date: 11 February 1938
• Docket Number: No. 8443.,8443.
• Parties: TRAVELERS INS. CO. v. BURDEN.
• Court: U.S. Court of Appeals — Fifth Circuit

94 F.2d 880 (1937)

TRAVELERS INS. CO. v. BURDEN.

No. 8443.

Circuit Court of Appeals, Fifth Circuit.

December 28, 1937.

Rehearing Denied February 11, 1938.

Pinkney Grissom, of Dallas, Tex., for appellant.

Shelby S. Cox, of Dallas, Tex., for appellee.

Before SIBLEY and HOLMES, Circuit Judges, and STRUM, District Judge.

STRUM, District Judge.

Appellant, insurance carrier for Ford Motor Company, instituted this action to vacate an order of the Texas Industrial Accident Board awarding R. E. Burden compensation for industrial injuries. By cross-action, appellee Burden sought greater compensation than was allowed by the Board. Upon a jury verdict finding appellee 50 per cent. permanently disabled, judgment below was rendered for $9.62 per week for 300 weeks. The insurance carrier appeals.

Burden was employed by Ford Motor Company at its Dallas Plant as a metal finisher. He worked along the assembly line near where other workers were grinding down joints and other rough spots on metal automobile bodies which had been treated with lead compound. In this part of the plant there was usually more or less lead-impregnated dust or fine metal filings floating in the air. A considerable quantity of this dust had accumulated along the assembly line where Burden was working. On March 10, 1936, another employee, in attempting to remove this dust with a blast from a compressed air hose, forcibly and unexpectedly blow a cloud of dust into Burden's face, and into his eyes, nose, and mouth, from which some of it was apparently inhaled into his lungs, bronchial tubes, and stomach, and thus absorbed into his body tissues. About a week later he began to have headaches, pains about his body and cramps in his joints, his gums were tender and painful, his urine frequent and painful, and he suffered from nervousness and sleeplessness — as a result of which he has been unable to work since about April 3, 1936.

On May 1, 1936, Burden filed with the Industrial Accident Board "a notice of injury" and "claim for compensation for injury," and on June 17, 1936 an amended claim, copies of all of which were mailed to the employer on the dates stated.

On the merits, appellant's principal defenses below were that Burden's condition is the result of an occupational disease — a natural hazard of his employment — rather than an injury, and that Burden, in violation of his employer's rule, failed to wear a respirator which was provided for him, an appliance which covers the nose, mouth, and eyes, and which presumably would have prevented his inhaling the lead dust.

Appellant also asserts it was entitled to a directed verdict below, because Burden failed to given his employer notice "of his injury" within thirty days, as required by article 8307, § 4a, Rev.Civ.Stat. of Texas, a jurisdictional omission, Williams v. Safety Casualty Co., Tex.Civ.App., 97 S.W.2d 729, and that no sufficient cause is shown to excuse such failure.

Clearly, Burden is disabled from lead poisoning. If, as contended by appellant, this were solely the result of a gradual absorption of lead dust as a natural and ordinary hazard of his employment, it would not be compensable. But there is credible evidence of the unexpected, unintended, and forcible blowing of an unusually large quantity of dust into his face, nostrils, and mouth about March 10, 1936, from which it may be found that an abnormal quantity was then accidentally inhaled by Burden. The medical testimony is that if Burden, over his four years of employment in this work, had gradually absorbed or inhaled lead particles into his system, such gradual absorption would render his system less tolerant than normally, and consequently more susceptible to a massive dose suddenly received; and that "the amount of lead he had absorbed over the course of several years would be deposited into the bones and tissues, and probably would not have given any distress, unless he had a large dose to cause acute symptoms." And further, "if he had not had this lead in his system by this constant every-day absorption over four years of time, a massive dose would have caused a disability at the time anyway." There is ample evidence to support the jury's finding of a compensable industrial injury. Barron v. Texas Employers' Ins. Ass'n, Tex.Com.App., 36 S.W.2d 464; Hartford Accident Co. v. Jones, 5 Cir., 80 F.2d 680; Maryland Casualty Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867; Rue v. Eagle-Picher Lead Co., 225 Mo.App. 408, 38 S.W.2d 487; 71 C.J. 593 (344).

If Burden, contrary to his employer's rules, failed to use a respirator, such omission was a mere violation of a rule regulating the manner and method of performing the work he was employed to do. He did not thereby step aside from his employment and undertake some other job which he was not employed to do, as in Quarles v. Lumbermen's Ass'n, Tex.Civ. App., 293 S.W. 333, and Leonard v. Cranberry Furnace Co., 150 Tenn. 346, 265 S.W. 543, relied upon by appellant. Compensation awards, though they do not rest upon actionable negligence of the employer, are subject to the fundamental limitation that the employer is not to be subjected to unrestricted liability for acts beyond the scope of the employee's duties. When an employee is injured while doing something he is not employed to do — an act which is itself outside the scope of his employment — as in the Quarles and Leonard Cases, supra, such injury is generally held not compensable because not suffered in the course of his employment. Where however, as here, the employee merely violates a rule relating only to the manner and method of doing his own work, such a violation does not defeat his right to compensation. Liberty Mutual Ins. Co. v. Boggs, Tex.Civ.App., 66 S.W.2d 787.

As to notice: Within thirty days after March 10, 1936, Burden had a...