AFFIRMED and Opinion filed June IS, 1993.




                                            In The

                               i&aixrt of Appeals
                       Txitlj Btstrirt of Qkxas at Sallaa
                                    No. 05-92-00087-CV



                JAMES R. MOSLEY AND JANICE MOSLEY, AppeUants

                                             V.


  EMPLOYERS CASUALTY COMPANY AND ALGAS INDUSTRIES, INC., Appellees

                     On Appeal from the 14th Judicial District Court
                                 Dallas County, Texas
                             Trial Court Cause No. 88-8024-A


                                         OPINION

                       Before Justices Baker, Chapman, and Barber
                               Opinion By Justice Chapman

       Appellants James R. Mosley and Janice Mosley appeal an instructed verdict granted

infavor of appellees Employers Casualty Company and Algas Industries, Inc. Infour points

of error, appellants contend that the trial court erred in: (1) granting appellees' motion for

instructed verdict; (2) sustaining the hearsay objection of appellee's counsel to Janice

Mosley's testimony about notifying appellee Algas of her husband's occupational disease;
 (3) granting an instructed verdict against James and overruling appellants' motion for        new



 trial because there was sufficient evidence in the record to submit special issues to the jury
on the issue of notice; and (4) granting an instructed verdict against Janice and overruling
appellants' motion for new trial because there was sufficient evidence in the record to

submit special issues to the jury on the issue that appellee Algas should have believed that
its failure to install replacement ventilators was substantially certain to result in injury, harm,
or illness to appellant. We overrule appellants' points of error. We affirm the trial court's
judgment.

                                             FACTS


       Appellant James Mosley worked for appellee Algas Industries beginning in 1971.
From 1985 to 1987, Algas shared a plant site with Fitting Valve Control (FVC). James
worked as a painter of industrial parts and machinery. In 1987, James began complaining
of headaches. Because of his problems, he visited Dr. Rea on April 13, 1987. Dr. Rea

diagnosed occupational toxic disease. James then filed a workers' compensation claim and

received a benefits award from the Industrial Accident Board. Appellee Employers Casualty

Company filed suit to set aside the award. James filed a cross-action, which included his

wife, appellant Janice's claim against Algas for intentional impairment of consortium. The

trial court granted appellees' motion for instructed verdict. This appeal follows.




                                               -2-
                                           ANALYSIS

                        A. Granting of Appellees' Instructed Verdict
                       and Denial of Appellants' Motion for New Trial

         In three points of error, appellants contend that the trial court erred in granting
 appellees' instructed verdict and denying appellants' motion for new trial. First, appellants
 claim that there is sufficient evidence to submit special issues on notice to the jury. Second,
appellants argue that there is sufficient evidence to submit special issues on whether
appellee Algas should have believed that its failure to replace ventilators was substantially
certain to result in injury to James Mosley.

                                   1. Standard of Review

       An instructed verdict is proper:

               (1) when a defect in the opponent's pleadings makes them
              insufficient to support a judgment;

              (2)when the evidence conclusively proves a fact that establishes
              a party's right to judgment as a matter of law; or

              (3) when the evidence offered on a cause of action is
              insufficient to raise an issue of fact.

McCarley v. Hopkins, 687 S.W.2d 510, 512 (Tex. App.-Houston [1st Dist.] 1985, no writ).
       In reviewing the granting of an instructed verdict by the trial court on an evidentiary
basis, the reviewing court will determine whether there is any evidence of probative force
to raise fact issues on the material questions presented. Collora v. Navarro, 574 S.W.2d 65,
68 (Tex. 1978). We must consider all of the evidence in the light most favorable to the



                                              -3-
 party against whom the verdict was instructed, discarding all contrary evidence and
 inferences. Collora, 574 S.W.2d at 68.

       Atrial court has broad discretion in granting anew trial, before or after judgment.
Champion Int'l Corp. v. Twelfth Court ofAppeals, 762 S.W.2d 898, 899 (Tex. 1988). Atrial
court may use its discretion to grant a new trial "in the interest of justice." Champion Int'l
Corp., 762 S.W.2d at 899.

                              2. Application of Law to Facts

                      a. Evidence to Support Special Issue of Notice

       Appellants contend that there was sufficient evidence in the record to submit special
issues to the jury on the issue of notice.       In order to make a claim for workers'

compensation, an employee must give notice ofinjury to the association or subscriber within

thirty days after the happening of an injury or the first distinct manifestation of an

occupational disease. Tex. Rev. Civ. Stat. Ann. art. 8307, §4a (Vernon 1988). The first
distinct manifestation means the first time the claimant knew, or should have known, that

he had an occupational disease. Travelers Ins. Co. v. Miller, 390 S.W.2d 284, 288 (Tex. Civ.
App.—El Paso 1965, no writ).

       Appellants claim that James presented himself for medical diagnosis on April 13,

1987. Dr. Alfred Johnson testified that his partner, Dr. Rea, first diagnosed James' toxic

occupational disease on April 13, 1987. Dr. Johnson also testified that James sustained his

disease in the course and scope of his employment with Algas Industries.
       Appellant's own evidence established that the first distinct manifestation of the
occupational disease began two to three years before his April 13, 1987 visit to Dr. Rea.
James filled out an illness questionnaire on the date of his first visit. He listed his symptoms
as headaches, fatigue, chest pains, and a clogged throat. He also listed chemicals that he

was exposed to at work. He noted that his symptoms began two or three years earlier and
were the result of exposure to chemicals. Dr. Johnson testified that a reasonably prudent
person may not recognize a toxic disease until it has been diagnosed by a physician.

However, the evidence conclusively establishes that James knew before his visit that his

symptoms, beginning two or three years before, were a result of exposure to chemicals at

his work place.

       Further, James contends that he told Jeannie Gomez about his headaches

approximately two months before his first visit to Dr. Rea. Gomez testified that she worked

for Fitting Valve and Control (FVC), which shared a plant location with Algas. She stated

that employees of FVC and Algas went to her if they were ill. She testified that she was

unsure of the exact date, but that James came to her complaining of headaches a "few

months" before the factory closed in June of 1987. Gomez testified that she did not work

for Algas. Appellant claims that Gomez's testimony was further proof that James gave

timely notice to appellees. We disagree. There is no evidence in the record to indicate that

Gomezwas the proper agent of Algas to receive notice of work-related injuries. We believe

that reasonable minds cannot differ in concluding from the evidence that James Mosley first



                                             -5-
 suffered from occupational disease two or three years before his visit to Dr. Rea and that
 he knew that his symptoms were work related. We overrule appellants' third point of error.
                            b. Evidence of Algas' Intentional Acts

        Appellants also contend that the trial court erred in granting an instructed verdict in
favor of appellees and overruling Janice Mosley's motion for new trial. Appellants believe
that there was sufficient evidence in the record to submit special issues to the jury on the
issue that appellant Algas Industries should have believed that its failure to install
replacement ventilators was substantially certain to result in injury, harm, or illness to
appellant. The trial court ruled that Janice Mosley's claim was limited to intentional

impairment of consortium. Appellant's point of error asserts that appellee acted negligently.
Although appellant's point of error did not properly challenge the trial court's ruling, we will
address appellant's point as it concerns intentional acts ofappellee Algas.

       Appellants contend that Algas' intentional actwas itsfailure to install new ventilators

and to provide other forms of ventilation for the toxic fumes. Appellants presented no
evidence to show that any employee, supervisor, or representative of Algas knew that the

ventilators needed to be replaced. Appellant presented a photograph taken by Janice

Mosley of a ventilator which she was told "was supposed to be on top of the machine."

Appellant claims that Algas employees testified that their employer failed to install new

ventilators and left them on the floor. However, appellants presented no other evidence to

substantiate their claims of intentional misconduct. Appellants offered no evidence that



                                              -6-
 Algas intentionally failed to install new ventilators and that Algas knew of the dangerous
 conditions. When evidence of a vital fact is so weak as to no more than create a mere
surmise or suspicion of its existence, such evidence is in legal effect no evidence. Seideneck
v. Cal Bayreuther Assoc, 451 S.W.2d 752, 755 (Tex. 1970). We overrule appellants' first
and fourth points of error.

                       B. Exclusion of Janice Mosley's Testimony
                                     on Issue of Notice


       In their second point of error, appellants contend that the trial court erred in

sustaining the hearsay objection to appellant Janice Mosley's testimony about notifying
appellee Algas Industries, of her husband's occupational disease. Appellants contend that
Janice's testimony concerned the issue of notice. Appellants failed to make an offer of

proof upon the trial court's sustaining appellee's objection to Janice's testimony. No error
was preserved for appellate review. Tex. R. App. P. 52(b); Tex. R. Crv. Evid. 103(a)(2);
Posner v. Dallas County Child Welfare, 784 S.W.2d 585, 588 (Tex. App.-Eastland 1990, writ
denied). We overrule appellant's second point of error.

      We affirm the trial court's judgment.




                                                  RON CHAPMAN
                                                  JUSTICE
Do Not Publish
Tex. R. App. P. 90
920087F.U05




                                            •7-
                                                                      bq\k I

                            (tiourt of Appeals
                     mftt) Btstrtrt of Qltxus at Sallas
                                       JUDGMENT

JAMES R. MOSLEY AND JANICE                  Appeal from the 14th Judicial Court of
MOSLEY, Appellants .                        Dallas County, Texas. (Tr.Ct.No. 88-8024-
                                            A).
No. 05-92-00087-CV                V.        Opinion delivered by Justice Chapman,
                                            Justices Baker     and    Barber    also
EMPLOYERS CASUALY COMPANY                   participating.
and   ALGAS     INDUSTRIES,       INC.,
Appellees



      Based on the Court's opinion of this date, the judgment of the trial court is
AFFIRMED.




Judgment entered June 15, 1993.



                                                   /< -^\
                                            RON CHAPMAN
                                            JUSTICE
