The writer finds himself unable to concur in the holding of the majority that the evidence in this case shows that the injury suffered by appellee was the result of an industrial or occupational disease, and falls within the rule laid down in Ætna, etc., v. Graham (Tex.Com.App.) 284 S.W. 931, or that the holdings in that case and in Texas Employers' Ins. Ass'n v. Jackson (Tex.Com.App.) 265 S.W. 1027,1029, are decisive of the questions here involved.
The record shows that appellee worked for the Atlantic Production Company in the Crane oil field for a period of about 4 1/2 months; that there was some poisonous gas in the field at all times; that it was most injurious when it first came out of the well, before being mixed with the atmosphere; that appellee was slightly gassed on some 15 or 20 occasions before the gassing on either the 9th or 10th of March, 1928; that he resumed his labors after each of the prior gassings with very little loss of time; that while pulling tubing on a well on the above date he received what he designates as the worst gassing of any received by him; that his eyes, nose, and throat were highly inflamed as a result thereof; that shortly thereafter he began to spit up blood; that he now has an active case of tuberculosis; that the right side of his nose is closed, and he suffers from shortness of breath; and that these symptoms have arisen only since the last gassing.
The testimony is uncontradicted that tuberculosis cannot exist without a germ, and that inhaling the gas alone will not produce it. There is further testimony to show that inhaling the gas closes the air cells of the lungs by swelling, and that any acute respiratory condition may flare up a latent tuberculosis. The physicians who testified in the case refused to say whether appellee's condition was due to one or to the several gassings. Appellant contends that the court should have instructed a verdict in its favor (1) because the evidence fails to show that appellee's condition was the natural result of an accidental injury; and (2) that his own testimony shows an occupational disease.
The writer is of the opinion that the record is sufficient to show that the gassing on March 9th or 10th was accidental. Appellee had been employed in the field for 4 1/2 months, and, according to his testimony, had been engaged in pulling tubing twice each week during that time. The gassings he had received before, according to his testimony, had affected only his eyes, and he had promptly recovered from them, and had resumed the arduous labor connected with his employment as a roustabout, while the gassing on that date was a result of the inhalation of the oil and gas as it came undiluted from the well in heads, the volume of which no one could foresee.
I am further of the opinion that an occupational or industrial disease is not shown by the record. According to my understanding of the numerous opinions which I have read, in which that question is discussed, an industrial or occupational disease is one which arises gradually and is incidental to the employment, and if, in this case, the record revealed only a series of gassings, which had gradually reduced the vitality of appellee, until tuberculosis had developed, then it might be said that it resulted from a condition brought about by and as a natural result of the employment.
Here, however, we have a series of minor gassings, and then one more severe than any of the others, by which the nasal passages were highly inflamed, some of the air cells of the lungs evidently closed by swelling, followed by a hemorrhage, and active tuberculosis. In the Graham Case, supra, the record showed that Miss Artie, whose duty it was to stir certain chemicals in a dye factory, was gradually weakened and her vitality reduced until she became the victim of tuberculosis and died. In that case the Commission of Appeals very properly held that her injury was not the result of an accident.
In the Jackson Case, the Commission of Appeals held that getting wet was not "damage or harm to the physical structure of the body," and therefore pneumonia contracted *Page 83 from such wetting was not compensable under the Workmen's Compensation Act. That case differs from the case at bar, in that here we unquestionably have "damage to the physical structure of the body," evidenced by the inflamed eyes, nasal passages, and lungs.
I shall not discuss the other issues presented by appellant, but am of the opinion that the case should not be reversed upon the grounds discussed in the majority opinion.