Court of Civil Appeals of Texas, Austin.
ÆTNA LIFE INS. CO.
May 15, 1935.
Rehearing Denied June 5, 1935.
Attorneys & Firms
*1088 F. D. Kerbow, of Austin, for appellant.
Benton Coopwood and Hart, Patterson, & Hart, all of Austin, for appellee.
This case arose under the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. art. 8306 et seq.). In the trial court it was an appeal by the insurance company from an award made by the Industrial Accident Board against it and in favor of appellee for injuries sustained by her as an employee of E. M. Scarbrough & Sons, while in the course of her employment. Trial was to a jury upon special issues, and upon their answers thereto judgment rendered for appellee for compensation at the rate of $10.50 per week for 100 weeks, and for $307 medical and hospital bills. From this judgment, the insurance company has appealed.
The first contention made is that the trial court erred in not sustaining appellant’s general demurrer to appellee’s cross-action, in that her pleading does not allege that she sustained an “accidental injury” as that term is defined by law. Appellee pleaded in this respect as follows:
“Defendants for their further answer and cause of action herein say that the defendant, Mrs. Blanche Harris, was employed in the ladies’ ready-to-wear department of Emerson M. Scarbrough & Sons Department Store, in Austin, Travis County, Texas, since November, 1928. She was working for said employer during the week beginning January 9, 1933. During that week said employer received shipments of ladies’ coats, cloaks and dresses. That beginning on January 9, 1933, the defendant, Mrs. Blanche Harris, while engaged in the scope of her employment and performing her duties as said employe, was unpacking ladies’ coats, shaking them out and putting them in stock. That while engaged in these duties, dust, dye particles, dirt and fuzz, and pieces of goods, threads and fur would fly off the coats and fill the air; that said particles got on the hands and face of the defendant, Mrs. Blanche Harris, frequently necessitating her having to wash her hands and face. That on Tuesday, January 10, 1933, these particles of dust, dye, fuzz, etc., aforesaid, got in the right eye of *1089 the defendant, Mrs. Blanche Harris causing great irritation and infection and thereby injuring said right eye. That thereafter, on Thursday, January 12, 1933, her said right eye became infected with erysipelas as the result of said injury caused by the particles getting into her eye. The condition of her eye grew steadily worse, and on Sunday, January 15, 1933, she went to a doctor, an eye specialist, who upon observing her eye ordered immediate first aid and emergency treatment in an effort to save her life. As the result of said orders and in compliance with them, defendant, Mrs. Blanche Harris was operated on immediately. Thereafter her right eye was removed.”
The contention that mere conclusions, and not facts, were pleaded is not sustained. The facts relied upon are adequately set forth. The only question in this respect is whether a compensable injury, within the purview of the compensation act, is pleaded. As to that, appellant grounds its contention on the hypothesis that there must be shown a physical injury to some member of the body through which the disease germs subsequently entered, before the employee is entitled to the protection of the act. Barron v. Texas Employers’ Ins. Ass’n (Tex. Com. App.) 36 S.W.(2d) 464. The rules there announced are, we think, clearly applicable to the instant case. Under these circumstances, appellee’s pleadings were clearly sufficient as against a general demurrer.
The next proposition of appellant is that the court erred in assuming jurisdiction, in that appellee failed to show notice of her injury given within thirty days thereof as required by statute (Ocean Acc. & Guar. Corp. v. Nance (Tex. Civ. App.) 25 S.W.(2d) 665.
Appellant next contends that the trial court erred in allowing $307 for medical and hospital fees incurred by appellee in treatment of her injuries during the twenty-eight-day period next following her injury, because same had not been presented to nor passed upon by the Industrial Accident Board. We find nothing in the record to show whether such items were before the board or not, the award of the board not being in evidence. However that may be, this exact contention was before us in Ætna Life Ins. Co. v. Culvahouse, 10 S.W.(2d) 803 (writ dis.), and there decided adversely to appellant’s contention.
*1090 Appellant also asserts error on the ground that there was no showing that appellant was ever requested to furnish such medical services and neglected or refused to do so. Section 7 of Ocean Acc. & Guarantee Corporation v. Nance (Tex. Civ. App.) 25 S.W.(2d) 665, that the statute should not be given a construction, where prompt action is vital, that the insured would probably die while efforts were being made and time lost in complying with the literal provisions of the statute. The instant case appears to be one of that character, and to come within the holding in the Nance Case, supra.
Appellant next complains of argument charged to have been made by appellee’s counsel to the jury. While certain argument is stated by appellant in its statement under its proposition to have been made, we find nothing in the record to support such statement. No objection was made to any argument during the trial, no bill of exception shown in the record setting forth any such argument, no separate assignments of error were filed, and the motion for new trial is relied on entirely as presenting such error. In such motion the ground stated is: “Because of improper argument to the jury by Defendant’s attorney.”
Obviously, this does not specify any argument complained of; and presented nothing on which the trial court had opportunity to act. Nor do appellee’s counsel in their brief admit or agree that any such argument as that stated by appellant in its brief was made by them. Even if appellant be not held to have waived the error, if any, it is not sufficiently presented, under these circumstances, to require the court to pass upon the contention made.
Finding no error in the record, the judgment of the trial court is affirmed.