Bailey v. American General Insurance Company

Mr. Justice Walker, joined by Justice Calvert,

dissenting.

I am unable to agree with the majority decision. It is a cardinal rule of statutory construction that every part of a statute should be given effect, and that a construction should be avoided that will render any part of an act inoperative, nugatory or superfluous. Standard Oil Co. of Texas v. State, 142 S.W. 2d 519 , writ ref. Our Workmen’s Compensation Act authorizes compensation for incapacity to work resulting from injury, and provides that the terms “injury” and “personal injury” shall be construed to mean damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom. The majority holding is based upon the proposition that the failure of petitioner’s body to function properly constitutes damage or harm to the physical structure of his body within the meaning of the statute. All incapacity to work results from the failure or inability of the body to function normally. It would seem to follow from the decision in this case that all disability resulting from an accidental event occurring in the course of employment is compensable. The statutory definition of injury is, therefore, rendered inoperative and '• nugatory in violation of the fundamental principle of construc'ion mentioned above. The alternative construction, which was adopted by the Court of Civil Appeals, and rejected by this *443 Court, is certainly not unreasonable and does no violence to any word or provision of the statute.

The evidence quoted in the majority opinion undoubtedly supports the conclusion that the petitioner’s condition is real and not simulated, is caused by the occurrence described, is susceptible of diagnosis, and has caused disability. The two medical experts who testified in the trial of the case are in agreement, however, that petitioner’s disability is due entirely to a mental condition and is not caused by damage to the physical structure of his bqdy. Dr. Brown, who was offered by the petitioner, testified, in part, as follows:

“Q. * * * You say this nervous system takes in the brain, and the spinal cord, and branches of the nerves and what not. Can you trace this failure to function to any of those specific organs ?

“A. Yes. It is the brain.

* * * * *

“Q. In other words, this failure of his mind to function properly in connection with this specific thing we have been talking about, this climing and what not?

“A. Yes.

:¡í jjs #

“A. ‘Trauma’ is just a synonym for injury, and ‘psychic trauma,’ of course, refers to trauma to the psychia or to the mind of the individual rather than to the physical structure. It is an interference with function rather than an interference with the structure.

“Q. Now, as I understand you then, what you have been testifying about here is a psychic trauma?

“A. Psychic trauma, yes.

“Q. And that is something that interferes with the functioning of the nervous system rather than something that damages the physical structure of the body?

“A. That is correct.”

The following is an excerpt from the testimony of Dr. Skogland, who was called by the respondent:

“Q. Did you arrive at any conclusion or diagnosis about the man’s condition at the time you saw him?

“A. Yes. I felt that he had no actual organic disease of his *444 brain or his nervous system or no actual injury of his brain or nervous system. In other words, from the viewpoint of structure and all, his brain and his nervous system was as good as it ever was, but I felt that the fellow had what we call an ‘anxiety reaction.’ In other words, he had had a close call and he had gotten sort of anxious about it and had not yet settled down.

“Q. All right, sir. I would like to ask you another question or two about that and that will be all, Doctor. Is this anxiety state, I believe that is what you call it, something that manifests itself in any change in the condition of the brain or nervous system physically? Is there anything you can see there or find if you examine the man internally?

“A. No.

“Q. I am sure I am clumsy about my question, Doctor, because I am not familiar with that field, but I will try to boil it down to this. If jmu had some way of getting inside the man’s body now, and examining his brain, and his nervous system, the nerves and whatever goes with it, would you find any change in the physical make-up of that structure since the time of this occurrence that he told you about in October of 1951 ?

“A. No. He would be perfectly normal.”

As pointed out in Hood v. Texas Indemnity Insurance Company, 146 Texas 522 , 209 S.W. 2d 345 , the statutory definition of injury must be liberally construed. It should be noted, however, that the statute states that the term “shall be construed” to mean damage or harm to the physical structure of the body. We are, therefore, not permitted to assign a common law meaning to the word “injury” or to construe the term as we consider proper, but are required to determine whether the petitioner’s disability arises from damage or harm to the physical structure of the body.

The words “damage” and “harm” are practically synonymous, and their presence in the statute does not, in my opinion, support the majority conclusion. The critical words of the Act as applied to the present case are “physical structure of the body.” The majority opinion of the Court of Civil Appeals ( 268 S.W. 2d 531 ) calls attention to Webster’s definition of “physical” as “of or pertaining to the body as contrasted with the mind,” and points out that as antonyms to “physical” the same authority uses the words “mental” or “emotional.” The meaning of the word “structure,” appears to be of equal, if not greater, importance in determining the proper construction of the stat *445 ute, and that term is defined by Webter as “arrangement of parts, or organs, or of constituent tissues or particles, in a substance or body.” If we assign to the words of the statute their usual meanings, the intention of the Legislature is clear. It would, in fact, be difficult to conceive how an intention to exclude a purely mental or nervous injury could be stated more plainly.

It might well be held that the failure or inability' of the body to function properly constitutes damage or harm to the body, but the Act requires, not simply damage or harm to the body, but damage or harm to the physical structure of the body. With the exception of the bruise and cable burn, which resulted in no disability, the structure of petitioner’s body was the same after the occurrence as it was before the accident. The structure of his body is the same at great heights and in precarious situations as it is on the ground. His blood pressure, ■ hypersensitiveness to pain, tremor of the closed eyelids and underactive deep reflexes are symptoms of the mental illness, but the evidence is conclusive that there is no organic injury and it does not appear that his disability results from the symptoms mentioned.

The workmen’s compensation statutes in England and in most American jurisdictions require merely an “injury” or a “personal injury,” and contain no definition of the terms. Charon’s Case, 321 Mass. 694 , 75 N.E. 2d 511 , and Burlington Mills Corporation v. Hagood, 177 Va. 204 , 13 S.E. 2d 291 , cited in the majority opinion, were decided under statutes which contain no definition of “injury,” and are not persuasive as to the proper construction of the Texas Act.

The statutes of a few American states, including Nebraska, Louisiana and Idaho, require “damage” or “harm” or “violence” to the “physical structure” of the body. In Bekeleski v. O. F. Neal Co., 141 Neb. 657 , 4 N.W. 2d 741, 743 , a passenger on an elevator operated by the claimant was caught between the floor of the elevator and the floor of the building and killed. The claimant sustained no physical injury to her person, but was in the elevator with the dying man for some thirty minutes. As a result of the shock to her nervous system, she was unable to perform the work of an elevator operator. After referring to the statutory definition of injury as meaning “ ‘only violence to the physical structure of the body’ ” and pointing out that the act should be liberally construed, the Court said:

*446 “* * * The language indicates a clear distinction between physical and bodily injury on the one hand and mental, nervous and psychiatric injury unaccompanied by violence to the physical structure of the body on the other. The plain import of the words used eliminates from the operation of the law disabilities resulting from mental disturbances, nervousness and psychiatric ailments when violence to the physical structure of the body cannot be established. * * *.

(i<i % *

“It is clear to us that to be compensable an accident arising out of and in the course of the employment must be accompanied by damage to the physical structure of the body of the claimant. * * * While the act should be construed liberally, as we have many times held, it should not be extended to cases which by plain language are excluded from its scope. * *

The majority opinion cites the cases of Peavy v. Mansfield Hardware Lumber Co., 40 So. 2d 505 , and Roberts v. Dredge Fund, 71 Idaho 380 , 232 Pac. 2d 975 . In the Peavy case the workman lost balance and fell upon his head and left side, resulting in a slight concussion which rendered him unconscious for a time. The pleadings and proof showed that he suffered from a traumatic neurosis, a mental or nervous illness resulting from his physical injuries. The right to compensation in such a case is established by our decision in Hood v. Texas Indemnity Insurance Co., supra. In the Dredge Fund case an electrical short circuit was accompanied by a roar and a ball of fire. The employee, who was standing near by, did not receive an electrical shock, but the shock to his nervous system affected his heart and caused his death. In its opinion affirming the award of compensation the court cites and apparently relies upon the decisions from jurisdictions in which the statutes do not require damage or violence to the physical structure of the body. The majority opinion in the present case reasons that the only possible distinction between the Dredge Fund case and the instant case is that in the former the employee died, and concludes that the distinction is not material because in the one case the body ceased to function and in the other it functions improperly. The distinction was expressly recognized by the Supreme Court of Idaho. It should be observed, moreover, that death inevitably results not only in the cessation of bodily function, but also in the complete disintegration of the physical structure of the body.

A substantial portion of the majority opinion is devoted to *447 a discussion of Gulf, C. & S. F. Ry. Co. v. Hayter, 93 Texas 239 , 54 S.W. 944 , 47 L.R.A. 325 and Houston Electric Co. v. Dorsett, 145 Texas 95 , 194 S.W. 2d 546 . These cases undoubtedly reaffirm the rule in Texas that recovery may be had at common law, the elements of negligence and proximate cause being present, for physical and mental pain and suffering resulting from an injury to the nervous system caused by emotional shock. The holdings that the nervous prostration, muscular weakness, headaches and other pains suffered by the plaintiffs in those cases were sufficient physical injury to justify recovery at common law, are not, in my opinion, authority for the proposition that the petitioner in the instant case sustained damage or harm to the physical structure of his body. The fact that these decisions would support a recovery by petitioner in this case in a common law action against his employer based upon negligence would afford a compelling reason for extending the Compensation Act to cover mental illness if we were vested with legislative power. It is submitted, however, that the contrary is true when we approach the question from the standpoint of judicial construction.

There is no common law of workmen’s compensation, and the petitioner’s right to compensation must arise solely from the applicable provisions of the statute. The first Workmen’s Compensation Law in Texas was enacted in 1913 and did not undertake to define “injury” or “personal injury.” The definition which now appears in our statute was included in the amendment of 1917 and has been a part of our law since that time. It originally appeared as part of Art. 8309, Sec. 1; but was transferred to and retained as part of Art. 8306, Sec. 20, when the Legislature amended the law in 1947 to provide for coverage of occupational diseases. Had the Legislature intended that the Act should apply to all injuries for which recovery might be had at common law, the result would have been accomplished simply by omitting the definition of injury from the statute. The inclusion of the definition clearly indicates the intention of the Legislature to limit the application of the law and to exclude certain injuries for which recovery might be had at common law.

Since the petitioner’s disability is due entirely to his mental condition, the failure of his mind to function property, it is my opinion that it does not result from injury as that term is defined by the Compensation Act. The propriety of extending the Act to cover cases of this character, and the consequences of failure to do so, are matters for consideration by the Legislature. *448 If a change in the law is to be made, it should come from that body with the provision of such safeguards and restrictions as it may deem appropriate.

Delivered May 11, 1955.

Rehearing overruled June 8, 1955.