Court of Appeals of Texas, Houston (14th Dist.).

Carrie HAMILTON, Individually and as Next Friend of James Hamilton, Jr., A Minor, Appellant,

v.

CITY OF HOUSTON, Appellee.

No. C14-89-00675-CV.

|

May 10,1990.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

ELLIS, Justice.

*1 This is an appeal from a workers’ compensation death case instituted by the widow and minor son of James Hamilton who died of a heart attack while at home on the evening of February 11, 1983. The jury failed to find that Mr. Hamilton sustained an “injury” on February 11, 1983 and the trial court rendered a take-nothing judgment in favor of the City. We affirm.

In her sole assignment of error, appellant complains that the trial court erred in excluding evidence of racially- motivated discrimination against appellant’s deceased husband and other stressful race-related conditions of his employment because such evidence was material and relevant, and such exclusion probably resulted in the rendition of an improper judgment.

In January of 1979, the Houston Fire Department hired James Hamilton as a radio repair technician. His white co- workers subjected Hamilton to offensive racial slurs and pranks. Testimony indicated that Hamilton’s two immediate supervisors and co-workers attempted to “freeze him out,” declining to provide him with the assistance necessary to become proficient in radio maintenance. Hamilton was also “singled out” with regard to work assignments. He was routinely relegated to the least desirable bench work and was rarely assigned the service calls which allowed the technicians a break from the shop work.

In November of 1980, Hamilton filed an EEOC charge, claiming discrimination by both his superiors and co-workers. Co-incident with the filing of his EEOC charge, Hamilton’s supervisors began to submit critical evaluations which eventually led to Hamilton’s 1982 suspension. He was subsequently re-instated at a lower rank and with less pay.

Prior to his death, Hamilton had filed a civil rights action against the Houston fire department and related individuals for racial harassment and retaliation. Appellant, as administrix of Hamilton’s estate, was substituted as party at Hamilton’s death. The Federal District Court entered judgment for Hamilton and the fire department appealed. The Fifth Circuit Court of Appeals held, in relevant part, that the evidence supported award of compensatory damages for emotional injury, but not for injury to Hamilton’s physical health. See Hamilton v. Rodgers, 791 F.2d 439.

In October of 1979, Hamilton was diagnosed with high blood pressure. He suffered from hypertension and arteriosclerosis, with a history of smoking. In November of 1982, Hamilton suffered a stroke and was hospitalized, returning to work on February 1, 1983. The record reveals that Hamilton worked in the shop on February 11, 1983, performing tedious bench work. Hamilton’s co-worker, Tom Henry, testified that the day’s work on February 11, 1983 was completed without incident. Mrs. Hamilton testified her husband returned home very tired. After his evening meal, Mr. Hamilton expired while resting in bed.

*2 To obtain a reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court’s ruling was in error and that the error was calculated to cause and probably did cause rendition of an improper judgment. Harrison v. Texas Employers Ins. Ass’n, 747 S.W.2d 494, 498 (Tex. App.–Beaumont 1988, writ denied); Texaco, Inc. v. Pennzoil, Inc., 729 S.W.2d 768, 937 (Tex. App.–Houston [1st Dist.] 1987, writ ref’d n.r.e); Tex. R. App. P. 81(b)(1).

The beneficiaries of a worker may recover death benefits under the Texas Workers’ Compensation Act in fatal heart attack cases only when there is evidence that work- related physical exertion or mental stress traceable to a particular event caused or contributed to cause the fatal heart attack. Brown v. Texas Employers’ Insurance Association, 635 S.W.2d 415, 416 (Tex. 1982). There must be proof of an accidental injury traceable to a definite time, place and cause. Olson v. Hartford Accident & Indemnity Co. 477 S.W.2d 859 (Tex. 1972). Damage or harm caused by repetitious mental trauma is not covered by the Texas Workers’ Compensation Act; “[i]n the case of mental activities, there must be the more reliable proof of an ascertainable time, place and event.” Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex. 1979).

The record does contain evidence pertaining to the effect of the on-going and generalized racial discrimination suffered by Hamilton at work. Appellant’s key medical expert, Dr. William Wood, testified that, in his opinion, this stressful work condition contributed to cause Hamilton’s decline in health and ultimate death. But Dr. Wood conceded that his opinion was based on the overall picture and that there was no evidence of any specific incidents of racially based stress occurring on or about the day of Hamilton’s death.

Laura Ealey, whose excluded testimony was the only evidence proffered by appellant prior to the submission of the case to the jury, reported a five-year history of racial discrimination at the workplace which she believed had a negative impact on Hamilton. Ealey provided no testimony as to a specific incident of racial stress on the last day when Hamilton worked. The excluded testimony of appellant likewise revealed no information concerning the occurrence of race- related incidents on or about Hamilton’s final day at work.

There was no evidence, excluded or admitted, revealing the occurrence of the requisite proof of specific physical damage or harm or a specific incident of racial stress traceable to a definite time, place and cause on or about February 11, 1983. Transportation Ins. Co. v. Maksyn, 580 at 338. The trial court did not err in excluding evidence of generalized racial stress. Appellant’s sole point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.

*3 Do Not Publish – TEX. R. APP. P. 90.