Dixon, Roger v. E. D. Bullard Company and Lone Star Industries, Inc. ( 2004 )

Reversed and Remanded and Majority and Dissenting Opinions filed February 19, 2004

Reversed and Remanded and Majority and Dissenting Opinions filed February 19, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-00638-CV

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ROGER DIXON, Appellant

V.

E.D. BULLARD COMPANY and LONE STAR INDUSTRIES, INC., Appellees

On Appeal from the 129^th District Court

Harris County, Texas

Trial Court Cause No. 2000-12363

D I S S E N T I N G   O P I N I O N

Indulging, as I must, all reasonable inferences in favor of appellant, I see no fact issue precluding summary judgment.

The summary judgment proof reflects appellant began having shortness of breath in the early 1990=s.  The condition became so disabling that appellant allegedly could not work after April 1, 1990.  In 1996, appellant was admitted to the hospital suffering from sudden nausea, vomiting, shortness of breath, and a cough with green sputum.  At that time, appellant admitted to having a history of Abad chest x-rays@ and to having worked as a sandblaster for twelve years. Appellant was hospitalized for almost a week from November 29 through December 5, 1996.  The record indicates his physicians were not certain whether appellant was suffering from pneumonia, tuberculosis, silicosis, or a combination of these ailments.  However, when he was discharged, appellant was instructed to Afollow-up@ at the Tulsa County Health Department Tuberculosis Clinic. Apparently, appellant made no attempt to follow-up or otherwise seek a definitive diagnosis of his ailment.

In July of 1997, appellant underwent surgery for an inguinal hernia.  X-rays taken before surgery again indicated a lung abnormality.  Tests conducted at that time proved the lung problem was not due to tuberculosis. However, again appellant did not seek a more definitive diagnosis of the problem.   As appellant=s own expert witness characterized the situation, appellant Awas having problems with shortness of breath in the 1990=s but did not understand why or do much in the way of evaluation.@  (Emphasis added.)

The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds.  Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. 1977).  Here, if appellant=s health was injured by the appellees, the injury occurred in the 1980=s.  Appellant did not file suit until March 8, 2000Cmore than twenty years after the alleged tort.  To toll the statute of limitations, appellant relies upon the Adiscovery rule.@  Under such rule, the limitation period does not begin to run until appellant learns of or, in the exercise of reasonable care and diligence, should have learned of the injury.  Gaddis v. Smith, 417 S.W.2d 577, 578 (Tex. 1967) (emphasis added).

While I agree there may well be a fact issue regarding whether appellant was told he was suffering from silicosis in 1996, I think there is no question that appellant failed to exercise reasonable care and diligence in pursing the nature and cause of his breathing difficulties.  Accordingly, I agree with the trial courtCappellant=s cause of action is barred by limitations.  For this reason, I respectfully dissent.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Majority and Dissenting Opinions filed February 19, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.