See also, Frazier v. Employers Mutual Casualty Company, 368 S.W.2d 955 (Tex.Civ.App. — Austin, 1963, error ref., n.r.e.); Consolidated Underwriters v. Wright, 408 S.W.2d 140, 144 (Tex.Civ.App. — Houston, 1966, error ref., n.r.e.); Hartford Accident and Indemnity Co. v. McFarland, 433 S.W.2d 534, 536 (Tex.Civ.App. — Tyler, 1968, error ref., n.r.e.); American General Insurance Company v. Johnson, 456 S.W.2d 188, 190 (Tex.Civ.App. — Houston, 1st, 1970, error granted). Defendant's counsel, with commendable candor, also calls to our attention the language to be found in Texas Employers' Insurance Association v. Cross, 358 S.W.2d 156, 157 (Tex.Civ.App. — San Antonio, 1962, error ref. n.r.e.), an opinion written by Justice Pope, wherein the court said: "Because contact dermatitis is listed in Section 20, Article 8306, Vernon's Tex.Civ.Stats., as one of the diseases which is compensable as an occupational disease, does not mean that it could never be the result of an accidental injury. The decisions even prior to the amendment of the occupational disease statute in 1955, permitted recovery, as accidents, for some of the things which are listed in that statute, provided they met the test stated in Barron v. Texas Employers' Ins. Ass'n, supra [ 36 S.W.2d 464 (Tex.Comm.App., 1931)]."
See Sections 20 and 27, Article 8306, R.C.S., Vernon's Ann. Civ. St. In Texas Employers' Insurance Association v. Cowan, (Tex.Civ.App.) 271 S.W.2d 350, a co-worker moved a ladder upon which a lot of lacquer had been placed, causing the lacquer to fall upon the claimant; in Texas Employers' Insurance Association v. Cross, (Tex.Civ.App.) 358 S.W.2d 156, the claimant slipped and fell into a hole containing wet cement; in Travelers Insurance Co. v. Grimes, (Tex.Civ.App.) 358 S.W.2d 247, a sack of soda ash dust split and fell upon the claimant. The claimants in all three cases incurred dermatitis and were compensated, for an accidental injury under the Texas Workmen's compensation law.
An accidental injury is defined by the courts as one traceable to a "definite time, place, and cause." Olson v. Hartford Accident Indemnity Co., 477 S.W.2d 859, 859-60 (Tex. 1972); TEIA v. Cross, 358 S.W.2d 156 (Tex.Civ.App. — San Antonio 1962, writ ref'd n.r.e.). Unlike an accidental injury, an occupational disease (1) arises from a gradual and slow onset, not traceable to a definite time, place and cause; or (2) arises from repeated physical exposure or repeated physical traumas.
While the evidence shows that the gas was inhaled over a three day period, and it cannot be determined whether the pneumonia resulted from one final whiff of the fumes, or from the cumulative effect of the repeated inhalations, the damage to the plaintiff's body was caused by "an undesigned, untoward event traceable to a definite time, place, and cause." Olson v. Hartford Accident Indemnity Company, supra; Barron v. Texas Employers' Insurance Association, 36 S.W.2d 464 (Tex.Com.App. 1931); Hartford Accident Indemnity Co. v. Contreras, 498 S.W.2d 419 (Tex.Civ.App. — Houston (1st Dist.) 1973, writ ref. n.r.e.); Travelers Insurance Co. v. Fagan, 366 S.W.2d 885 (Tex.Civ.App. — Texarkana 1963, writ ref. n.r.e.); Texas Employers' Insurance Association v. Cross, 358 S.W.2d 156 (Tex.Civ.App. — San Antonio 1962, writ ref. n.r.e.). The event, chemical pneumonia was untoward and unexpected. It was traced to a definite place and cause.
The conflicts in the evidence must be resolved by the jury for it is the province of the trier of facts to determine the weight to be given the evidence and to reconcile conflicts or inconsistencies therein. Texas Employers' Insurance Association v. Cross, 358 S.W.2d 156 (Tex.Civ.App.— San Antonio 1962, writ ref'd n.r.e.); Texas Employers' Insurance Association v. Brinkley, 349 S.W.2d 321 (Tex.Civ.App.— Ft. Worth 1961, wr. ref. n.r.e.); Texas Employers' Insurance Association v. Price, 336 S.W.2d 304 (Tex.Civ.App.— Eastland 1960, n.w.h.). The verdict in this case makes it clear that the jury accepted the testimony of Dr. Barnes, appellee's witness, to the effect that appellee was totally and permanently disabled.
An analysis of the claim filed by appellee and his hearing statement, which we have above noticed, in all relevant particulars, reflects that he was claiming disability that resulted from an occurrence at a definite time and place that immediately caused harm to the physical structure of the body. The claim filed on the claim form furnished by the Board in describing the occurrence and the resulting injuries uses language comparable in principle to that used in Barron v. Texas Employers' Ins. Assn., 36 S.W.2d 464 (Tex.Com.App.); Consolidated Underwriters v. Wright, 408 S.W.2d 140 (CCA), ref., n.r.e.; Solomon v. Massachusetts Bonding Ins. Co., 347 S.W.2d 17 (CCA), writ ref.; and Texas Employers' Ins. Ass'n v. Cross, 358 S.W.2d 156 (CCA), ref., n.r.e. In each of the cases, with the exception of Cross, there was a general description of the incident which included statements of inhalation of some substance which if inhaled over a long period of time could cause an occupational disease.
In a workmen's compensation case the weight and credibility given to both lay and medical witnesses is for the jury to determine. American General Ins. Co. v. Florez, 327 S.W.2d 643 (Tex.Civ.App.) no writ hist.; Texas Employers' Ins. Ass'n v. Cross, 358 S.W.2d 156 (Tex.Civ.App.) writ ref., n.r.e.; Lopez v. Associated Employers Ins. Co., 330 S.W.2d 522 (Tex.Civ.App.) writ ref. Jury findings on conflicting evidence are not adequate grounds for remanding a cause unless the verdict is so overwhelming against the great weight of the evidence that it shocks the conscience or the conclusion reached was the result of some passion, prejudice or improper motive. Fidelity Casualty Company of New York v. Moore, 333 S.W.2d 956 (Tex.Civ.App.) no writ hist.; McCrory's Stores Corp. v. Murphy, 164 S.W.2d 735 (Tex.Civ.App.) writ ref., w.o.m. The undisputed facts in this case and the conflicting evidence introduced provide an adequate record, as a whole, from which the jury could reasonably find that the plaintiff's accident in July, 1966, was not a producing cause of any total incapacity.
The court also said that, '* * * the statute does not undertake to prescribe the form or manner of making claims * * *' In Texas Employers' Insurance Association v. Cross, Tex.Civ.App., 358 S.W.2d 156, writ ref., n.r.e., the San Antonio Court held that the fact that contact dermatitis is listed as an occupational disease does not prevent the claimant from recovering for contact dermatitis as an accidental injury when the onset is at a definite time or place. The latter requirement seems to be the only prerequisite to a recovery under the general injury provision for a listed occupational disease.
Appellee also asserts that the defense urged by appellant would conflict with the results reached in the case of Texas Employers' Ins. Ass'n. v. Cowan, Tex.Civ.App., 271 S.W.2d 350, and Aetna Cas. Surety Co. v. Bailes, Tex.Civ.App., 285 S.W.2d 886. These cases are distinguishable from the case at bar in that in each of those cases, as in our recent case of Texas Employers' Ins. Ass'n. v. Cross, 358 S.W.2d 156, the injured worker had sustained an accidental injury, and recovery was had The worker suffering from an occupational disease is not required to wait 401 weeks to recover maximum benefits, in that the jury is entitled to consider the probable future effects as in any other case. Aetna Cas. Surety Co. v. Bailes, supra.