Atkinson v. United States Fidelity & Guaranty Co.

235 S.W.2d 509, 1950 Tex. App. LEXIS 1799
CourtCourt of Appeals of Texas
DecidedOctober 25, 1950
Docket12156
StatusPublished
Cited by29 cases

This text of 235 S.W.2d 509 (Atkinson v. United States Fidelity & Guaranty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkinson v. United States Fidelity & Guaranty Co., 235 S.W.2d 509, 1950 Tex. App. LEXIS 1799 (Tex. Ct. App. 1950).

Opinion

NORVELL, Justice.

This is a Workmen’s Compensation case. Plaintiffs below and appellants here are the widow and children of Federico Atkinson who was an employee of Pan Am Foods, Inc. Appellee is the insurance carrier. After appellants had completed the introduction of their evidence, appellee moved for an instructed verdict which was overruled by the court. However, after the case was completed, a second motion for a peremptory instruction w.as made renewing the grounds set forth in the first motion and adding certain additional ones. This motion was granted by the court and judgment rendered accordingly.

The case is before us upon the point that the court below erred in granting the motion for an instructed verdict. The issues involved in this appeal are set forth from appellee’s standpoint by its counter-points, wherein it is asserted that (a) there is no evidence of an accidental injury to the physical structure of the body suffered by the decedent, Federico Atkinson, and (b) that there is no evidence of a causal connection between an accidental injury and disease resulting in death. In this State, a mere scintilla of evidence is regarded as “no evidence”. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Appellants’ claim is not based upon the 1947 amendment to the Workmen’s Compensation Act, Acts 1947, 50th Leg. p. 176, ch. 113, Article 8306, § 20, relating to occupational diseases, but rests upon the theory that Atkinson died of Addison’s disease which naturally resulted from damage or harm to the physical structure of the body occasioned by stress, nervous strain, exposure and inhalation of ammonia gas, undergone by him during the course of his employment by Pan Am Foods, Inc.

The case can best be discussed by considering appellee’s counter-points. We consider first appellee’s contention that there is no evidence that Atkinson suffered an accidental injury to the physical structure of the body. Statements of the evidence are made in accordance with the rule that the testimony must be viewed in the light most favorable to appellant; that conflicts must be disregarded and every reasonable intSndment indulged in favor of the losing party below. Le Master v. Ft. Worth Transit Co. 138 Tex. 512, 160 S.W.2d 224; Happ v. Happ, Tex.Civ.App, 160 S.W.2d 227.

Federico Atkinson died about the middle of December, 1948, and according to appellant Olivia Flores Atkinson, her husband prior to October 19, 1948, was in good health, a “powerful man”, thirty-two years of age, who had been sick in -bed only one time since their marriage in 1938. He was employed by Pan Am Foods, Inc, which was engaged in processing foodstuffs by freezing them. Her husband worked a twelve-hour shift and after he had returned home from work about midnight, his foreman called him back to the plant to repair a f,an. It was shown that the processing plant of the employing company had freezing units which were maintained at low temperatures. Atkinson left for the plant about 1:00 a. m, and when he returned home about four o’clock in the morning, he was violently ill. Mrs. Atkinson testified that he had vomited in the automobile he was driving and complained that his legs hurt him terribly and he had pains in his chest. Atkinson was extremely nauseated and both his body and his expelled vomit carried a strong odor of ammonia, which was used in substantial quantities in the freezing processes carried on at the Pan Am plant.

Mrs. Atkinson also testified that her husband, in explanation of his illness, stated that he had gone into a freezer unit and stayed for ten or fifteen minutes, “that he had inhaled a lot of gas and that was why he was sick.” This last statement was finally admitted in evidence as a res gestae declaration over the objection of appellee. Dr. Vidal Longoria, who attended the deceased during his last illness, testified, apparently without objection, that Atkinson told him that he thought the fact he had inhaled ammonia gas caused him to vomit.

*511 There is a preliminary question raised as to the admissibility of the decla: ration of deceased that he had inhaled ammonia gas. It is said in the briefs that the trial court admitted the statement on authority of Texas Employers Ins. Ass’n v. Wade, Tex.Civ.App., 197 S.W.2d 203. We think that the Wade case supports the trial judge’s ruling. The opinion in the cited case and the opinion in Texas Employers Ins. Ass’n v. Shifflette, Tex.Civ.App., 91 S.W.2d 787, contain discussions of the res gestae rule as applied to situations similar to that involved here. These discussions need not be repeated. It is sufficient to say that the evidence shows that the declarant, whose death took place within two months, was in extreme physical and mental distress at the time the statement was made. Atkinson’s declaration could properly be considered as an undesigned circumstance which was part of an occurrence related to his consequential death. The matter was one addressed to the discretion of the trial court and that court did not exceed its authority in admitting the statement. It follows that, in passing upon the point at issue, the declaration cannot be disregarded as having no probative force.

While the evidence shows that Atkinson was called back to the plant because a fan had failed to function properly in the freezing unit, there is no showing that this fact or any other occurrence caused an unusual amount of ammonia gas to be present in or about the room or cell where Atkinson had to work. Apparently some ammonia gas in varying quantities is always present in these chambers. It is contended by appel-lee that as there was no showing of a breakage of ammonia pipes or some similar occurrence, there is no showing of accident. In Texas Employers’ Ins. Ass’n v. Wade, Tex.Civ.App., 197 S.W.2d 203, heretofore referred to, it was held that a showing that the deceased had inhaled chlorine gas which produced bronchial pneumonia supported a finding of “injury” as that term is defined in the Workmen’s 'Compensation Act. The evidence disclosed that deceased was employed in a chemical plant and that the day he became sick the chlorine gas in the plant was unusually strong. There was, however, no showing of an occurrence such as an explosion or a breakage of pipes or something similar thereto that would account for this condition. The authority primarily relied upon in the Wade case is that of Maryland Casualty Co. v. Rogers, Tex.Civ.App., 86 S.W.2d 867, 870, wherein it appears that death resulted from pneumonia allegedly caused by breathing dust from higera which was being ground in a hammer-type mill.

In the Rogers case Mr. Justice Martin, ■speaking for the Amarillo Court, said:

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Bluebook (online)
235 S.W.2d 509, 1950 Tex. App. LEXIS 1799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkinson-v-united-states-fidelity-guaranty-co-texapp-1950.