dissenting.
I vigorously dissent. This ease, in my judgment, rises or falls on the issue of when Loniell Sowell’s cause of action accrued. That issue must be gleaned from the following summary judgment evidence.
From movants below, respondents here, the relevant portion of Dr. M.J. Thomas’ medical records of August 18, 1984:1
In summary, this 59 year old male patient whose significant occupational exposure to silica and other dust, has presented with apical lung fibrosis with paramediastinal masses and hyperinflation in the lower lobes with pulled up hilar and clinical evidence of pulmonary arterial hypertension, without any hypoxia. This picture is consistent with pneumoconiosis. His arthral-gia also will go along with the diagnosis and a workup for rheumatoid factor and *814ANA and also serum protein electrophoresis, workup for excluding tuberculosis, are in order. Autoimmune phenomenon and arthralgias are common in silicosis and probably that is what this gentleman has. It is surprising that this patient has a very cool and disinterested attitude about the whole problem, in spite of explaining to him the problem and from what I gather from the interview it appears that he may not be willing for any further workup like a CT scan of the chest to study the me-diastinum and the blood workup and other test to exclude tuberculosis.
From appellant, her affidavit:
I, Tommie G. Sowell, do hereby state under oath that there has been no administration of the Estate of Loniell Sowell. Further neither I nor my husband Loniell Sowell was aware that. Loniell Sowell had silicosis or what caused the disease. I first became aware of this information after my husband’s death, when I received the results of the autopsy report.
It is from the evidence first quoted above that the majority finds this “undisputed, cogent faet(s): (3) in August, 1984, a medical doctor explained the nature of Mr. Sowell’s injuries, disease and disorders to him, being probable silicosis with its signs, symptoms and conditions resulting from significant occupational hazards and exposure to silica.” The majority restates this: “The silicosis was attributable by Dr. M.J. Thomas, a medical doctor, to silica exposure when Mr. Sowell was on the job at Lufkin Industries. Dr. Thomas so advised Loniell [sic] in 1984.” That the majority can assert these statements as “fact”, and “undisputed” at that, is nothing short of amazing. The only reference in Dr. Thomas’ report is to “explaining to him the problem.” Dr. Thomas makes no such forthright statements that the majority attributes to him. Dr. Thomas’ report does not say that he told Mr. Sowell that Mr. Sowell had silicosis, much less that he told Mr. Sowell the silicosis was a result of silica exposure at Lufkin Industries. Yet the majority, at another instance, states: “The summary judgment proof offered at the summary judgment hearing demonstrated that Dr. Thomas explained to Mr. Sowell in August of 1984 that Sowell had signs, symptoms and conditions common in silicosis attributable to silica exposure on the job at Lufkin Industries.” Further on in the majority opinion, they state: “A careful reading of the detailed report reveals that Mr. Sowell either had actual knowledge of his silicosis or certainly in the exercise of ordinary care and diligence should have known of his injury and damages logically flowing from silicosis.”
Obviously the majority is suffering under the delusion that if you say it enough, it becomes fact. However, “saying it’s so, don’t make it so.” The majority reads Dr. Thomas’ report in a manner completely favorable to the movants and resolves any doubts in their favor. This turns the rules of appellate review of summary judgments entirely upside down.
Furthermore, in their zeal to affirm this summary judgment, the majority “carefully examined” her affidavit and concluded “the matters set out in the affidavit would not be admissible before the jury.” What the majority fails to mention is nowhere in the record is there any objection to the affidavit. Appellees were “compelled by Rule 166a(c) and (e) of the Tex.R.Civ.P. to make an objection to the ... affidavit in writing prior to the summary judgment hearing or waive any objections.” Tag Resources v. Petroleum Well Services, 791 S.W.2d 600, 606 (Tex.App.—Beaumont 1990, no writ). See also, Einhorn v. LaChance, 823 S.W.2d 405, 410 (Tex.App.—ouston [1st Dist.] 1992, writ dism’d w.o.j.). We are not only compelled to consider Ms. Sowell’s affidavit, but to accept it as true and accept all reasonable inferences as true.
The majority attempts to bring this case outside of Wright v. Gifford-Hill & Co., Inc., 725 S.W.2d 712 (Tex.1987), and the explanation of Nabours v. Longview Savings & Loan Ass’n., 700 S.W.2d 901 (Tex.1985), contained therein. Wright involved a widow suing to recover exemplary damages for the death of her husband under Tex.Rev.Civ.Stat.Ann. art. 8306, § 5 (Vernon 1967). The court characterized as dicta the language in Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934), requiring recovery of actual damages under the compensation act *815in order to recover exemplary damages. The court went on to hold that a plaintiff need not secure a finding on the amount of actual damages in order to recover exemplary damages under the compensation act and disapproved that portion of Fort Worth Elevators. The court went on to explain that the statement in Nabours that even in cases where actual damages are not recoverable, it is still necessary to allege, prove, and secure jury findings on actual damages is not applicable to causes arising under the exemplary damage provision of the compensation act. This explanation of Nabours highlights an important aspect of Nabours. Nabours acknowledges exemplary damages may be awarded in cases where actual damages exist regardless of whether the actual damages are recoverable. 700 S.W.2d at 903. Under these cases, Mrs. Sowell has her cause of action for exemplary damages against the employer(s) for the death of her husband.
In summary, Dr. Thomas’ report does not unequivocally state he told Loniell Sowell about any diagnosis of silicosis, only “of explaining to him the problem.” There is a doubt of what “the problem” was and to what extent it was explained. This doubt must be resolved in favor of Mrs. Sowell, the non-movant. Mrs. Sowell’s affidavit is competent summary judgment evidence, no objection having been made to the trial court, therefore, it must be taken as true. Thus, it is abundantly clear the issue has been joined and a genuine issue of material fact, when did Loniell Sowell’s cause of action accrue, exists. Therefore, summary judgment was not proper. Consequently, I would reverse and remand for a new trial.
. Also quoted in the majority opinion.