199 S.W.2d 685 | Tex. App. | 1947
This is a compensation case instituted by the appellant to recover of the appellee compensation for total and permanent disability alleged to have been occasioned by an accident suffered by him on December 2, 1944, while engaged in the duties of his employment by the Postex Cotton Mill located at Post, in Garza County, of which the appellee was the compensation insurance carrier. A jury was empaneled to try the case but at the close of the testimony, upon motion of the appellee, the trial judge instructed the jury to return a verdict in its favor and, upon the return of such a verdict, judgment was entered denying appellant any recovery.
Appellant presents a number of assignments of error, in which he contends the judgment should be reversed but we do not deem it necessary to discuss them in detail. His principal contentions are, first, that the court erred in giving to the jury a peremptory instruction in favor of the appellee because the evidence showed he received an injury to the physical structure of his body on December 2, 1944, from which he contracted tuberculosis as a natural and direct result, and, secondly, because the court erred in sustaining appellee's objection to a hypothetical question asked of an expert witness by appellant concerning the natural and *686 probable consequences of one being subjected to the conditions under which appellant was working at the time he alleges he received the injury.
The evidence showed that on Saturday, December 2, 1944, appellant was working as a clean-up hand in the weave shop of the Postex Mills; that the shop was heated by steam and about eleven o'clock in the morning appellant became too hot; that he became sick at his stomach, vomited and went outside to cool off. He remained in the open air for about thirty minutes and then returned and continued working until noon. The temperature of the room was not shown but appellant testified it seemed to him it was unusually hot and another employee testified that he himself came very near getting too hot. He said the steam heating apparatus got out of control and that he requested the foreman to adjust it but he declined to do so. It is further shown that appellant's nose bled; that he felt weak and sick at his stomach; that he began coughing and sneezing; and that he developed what he thought was a common cold. The mill shut down at noon, as was its custom, and appellant went home where he continued to cough through the afternoon and night. During the night his nose bled profusely and his weakened condition continued indefinitely. He worked most of the time during the month of December but was ill and confined to his bed four days during the month. He said he continued to suffer ill effects from his experience in becoming too hot on the occasion mentioned and he was unable to get rid of his cold. In February, 1945, he suspected he had tuberculosis and after undergoing an examination he was admitted to the State Sanitorium for Tubercular Patients, located near San Angelo, where he remained for about three months. The testimony showed conclusively that appellant was a tubercular but at the time of the trial he was what is termed an "arrested case." Prior to December 2, 1944, his health was apparently good and he engaged steadily in manual labor. It was further shown that the room in which appellant worked was dusty and the atmosphere contained some minute particles of wool or cotton, but there was no testimony to the effect that any of the dust or particles of textile materials were discharged from his throat or lungs by coughing or otherwise, nor was it shown the lungs or bronchial tubes were in any manner affected by breathing the atmosphere containing them.
Appellant contends his total and permanent disability resulted directly from his experience above related while in the course of his employment; that his becoming too hot and going outside to cool off resulted in his taking cold which ultimately developed into tuberculosis, and that the tuberculosis caused his total and permanent incapacity.
In his pleadings, the appellant alleged he became overheated and suffered from heat exhaustion or heat stroke and that he, therefore, suffered an accident such as is contemplated by the Texas Workmen's Compensation Law, Art. 8309, Vernon's R.C.S., but the testimony did not establish these allegations nor was it sufficient to establish an injury to the physical structure of the body such as is contemplated by the Statute. It is now well established by many decisions of our courts that in order to recover under the compensation law, actual physical injury, internal or external, must be shown in a proper way before an inference legally may be drawn that the final result in respect to which compensation is claimed is attributable to an injury originating in the employment. Southern Casualty Co. v. Flores, Tex.Com.App., 1 S.W.2d 260; Texas Employers' Ins. Ass'n v. Jackson, Tex.Com.App., 265 S.W. 1027; Hebert v. New Amsterdam Casualty Company, Tex.Com.App., 1 S.W.2d 608; Lumbermen's Mut. Casualty Company v. Vaughn, Tex. Civ. App.
Appellant asserts that the instant case is on all fours with the case of American General Ins. Co. v. Ariola, Tex. Civ. App.
Appellant relies strongly upon the case of Maryland Casualty Company v. Rogers, Tex. Civ. App.
The next contention made by appellant is that the court erred in refusing to permit Dr. Edwards to testify that a person suffering from overheat would catch cold if he were exposed to cold air. The hypothetical question asked Dr. Edwards by appellant's counsel was: "Suppose I got overheated to such an extent that I suffered from overheat or heat exhaustion and went out into the cold air?" At this point, appellee's counsel objected to the question upon the ground that the testimony did not show appellant suffered from heat exhaustion, and the objection was sustained. We find no error in this ruling of the court. No witness testified that appellant suffered from overheat or heat exhaustion and it is elementary that a hypothetical question must be based upon the conditions shown by the testimony in the case.
We have carefully examined all of the contentions presented by appellant and, in our opinion, no error is revealed by any of them. The judgment of the court below will, therefore, be affirmed.
BOYCE, J., not sitting. *689