The evidence shows that the plaintiff, George Khoury, was examined by Dr. Holcombe in the interest of the Vacuum Oil Company and found to have a developed hernia on one side. As a result of Dr. Holcombe's finding, Khoury was not given employment by Vacuum Oil Company, but he soon afterwards sought and was given employment by Union Sulphur Company, without an examination. After having been employed by Union Sulphur Company, he worked continuously at any work assigned him, shirking nothing and giving satisfaction until overcome by his condition, about two years after being employed.
I agree with the majority of the court and with the lower court that the evidence does not support the averments in plaintiff's petition that he received a traumatic hernia at the time and place alleged in his petition. My conclusion is, however, that plaintiff's two years of arduous labor for Union Sulphur Company gradually, and without causing him serious pain, caused the hernia he already had to enlarge and grow, and also caused another to form on the opposite side. I think the testimony showed on the present trial, and on a previous occasion we found, that men with hernia have done manual labor for years and that it does not always disable; it depends, etc.
In this instance, the evidence shows that the hernia which Dr. Holcombe found Khoury to have did not disable him, nor incapacitate him as to arduous manual labor, because he is shown to have performed that kind of labor for Union Sulphur Company for two years, but his labor for that period of time for Union Sulphur Company has reduced a man fully capable at the time he commenced working for it to a state of incapacity to do work of any reasonable character.
Defendants contend that Khoury concealed from them, at the time he was employed, the fact that he had hernia and that he in that way obtained some compensation and an operation, to which he was not entitled, etc.
I do not see that Khoury was called on to voluntarily inform officers of Union Sulphur Company, at the time he sought employment, that he had a hernia when the hernia did not interfere with the service he was due to render. He could not foresee any more than the defendants could have done that it would ultimately do so. When he was examined by physicians for Union Sulphur Company, he was found to have a hernia on each side of the hernial area; and, acting under the advice of defendant's physicians, he underwent an operation on that account. It was held out to him that the operation would correct his condition, and that he would be able to return to work; but the operation resulted in the formation of a hydrocele on the left side which is as incapacitating as the hernia. The evidence shows that this hydrocele will not get well, unless it is overcome by another operation.
The operation on account of the hydrocele, if submitted to, will be serious. And it may remove the trouble, but it might not. There is in fact a possibility, according to the evidence, that his condition might be made worse by an operation. An injured employee is not obliged to undergo such a serious operation as an operation for hydrocele in this case will be as a prerequisite to claiming compensation on account of his injury.
As I see the situation the plaintiff, Khoury, entered the service of the Union Sulphur Company, with a hernia on one side that did not hinder him from performing arduous manual labor. He rendered continuous and satisfactory service for about two years. During his period of service his existing hernia gradually enlarged and another one formed on the other side, so that he became, while in the service of the defendants, as a result of his arduous service, a permanent total disability to do work of any reasonable character. After the operation, he was permitted to return to work, and worked for about eight days, after which he was discharged. Defendant's reasons for discharging him, was that it was done in the interest of economy, but it seems to me that the economic situation at the time he returned to work must have been known to the defendant as well as eight days thereafter. I therefore conclude that defendant thought it well to let him work a few days and then let him go, because it understood that he was really permanently and totally disabled as a result of his physical condition brought on in their service. I therefore dissent, and contend that the judgment appealed from should be set aside and judgment rendered in favor of the plaintiff as prayed for in his petition. *Page 784