Aetna Casualty & Surety Co. v. Insensee

• Decision Date: 06 May 1948
• Docket Number: No. 2794.,2794.
• Citation: 211 S.W.2d 613
• Parties: AETNA CASUALTY & SURETY CO. v. ISENSEE.
• Court: Texas Court of Appeals

211 S.W.2d 613

AETNA CASUALTY & SURETY CO. v. ISENSEE.

No. 2794.

Court of Civil Appeals of Texas. Waco.

May 6, 1948.

Rehearing Denied May 27, 1948.

Appeal from District Court, McLennan County; R. B. Stanford, Judge.

Suit under the Workmen's Compensation Act by Melvin Isensee against Aetna Casualty & Surety Company to set aside award of Industrial Accident Board denying compensation for alleged accidental injury sustained by plaintiff's wife in course of her employment, as an employee of the Owens-Illinois Glass Company. From judgment for plaintiff, the defendant appeals.

Affirmed.

Naman, Howell & Boswell, of Waco, for appellant.

Clark & Fisher and Charles Mooney, all of Waco, for appellee.

LESTER, Chief Justice.

This is a suit brought by appellee against appellant under the Workmen's Compensation Law, Vernon's Ann.Civ.St. Art. 8306 et seq., for alleged accidental injuries sustained by his wife in the course of her employment on April 1, 1946, as an employee of the Owens-Illinois Glass Company. The Industrial Accident Board refused to award compensation to the claimant, which was based upon an alleged injury to her lower abdomen, muscles, ligaments, internal organs and possible injury to bony structure. From the decision of the Board appellee appealed to the district court, where he alleged that "on or about April 1, 1946, his wife was working at the Owens-Illinois Glass Company in Waco, Texas, inspecting glass cases that came along a conveyor, it being a part of her duties to remove any cases that had defects to a table and then onto the floor; that on the occasion in question, while she was handling one of said boxes, she suffered a strain in the course of her work and she felt a sudden pain in her abdomen, which caused her to feel sick; that she continued thereafter to have pain in her abdomen, but that she thought she would recover from said trouble and that she continued to work, though she was not physically able to do so, until April 6th; * * * that as a result of said injuries plaintiff's wife continued to suffer severe pain in her abdomen and her condition grew worse until she suffered a miscarriage on May 31, 1946, and as a result of her injuries and the conditions following the same her nervous system was affected, and as a result of her injuries and miscarriage caused by said injuries she suffered an antiflexed uterus and developed a mass in the left culdesac resulting in adhesions and binding of the uterus, particularly on the left side; that as a result of her injuries and the effect of said injuries on her system, said injuries and resulting condition either affected her heart or complicated an existing heart condition from which she did not know she was suffering prior to said injury; that the injuries and resulting conditions herein complained of resulted from said accidental strain and injury on the occasion aforesaid, and said accidental injury was the producing and procuring and direct cause of this plaintiff's wife becoming totally incapacitated for work, and that said total incapacity for work continued from April 1, 1946, for a period of thirteen weeks, and said accidental injuries and the conditions resulting therefrom were a producing cause and procuring cause and a direct cause of permanent partial incapacity to work and plaintiff's wife has suffered therefrom a permanent partial incapacity to work as hereinafter more particularly shown."

The case was submitted upon special issues and the jury found that Mrs. Isensee sustained an accidental injury to her body, and that she sustained total incapacity to work for 13 weeks and 60% permanent partial incapacity thereafter. Based upon such findings the court entered judgment for appellee for $196 for 13 weeks of total incapacity from the date of said injury, and $625.83 covering partial incapacity to date of judgment, and $9.07 per week from the date of judgment for a period of 231 weeks thereafter.

Appellant contends that the court erred in permitting a recovery for partial incapacity to work in the future, in that said issue was unsupported by medical or other competent evidence; that the heart condition was wholly disconnected from her abdomen injury, and therefore not compensable.

The statement of facts contains approximately 300 pages, which makes it impracticable to set out all the testimony pro and con pertaining to the foregoing assignment.

The rule is that after disregarding all adverse evidence and considering the evidence most favorable to appellee, giving it all reasonable conclusions and inferences that might be drawn therefrom, if such evidence is of sufficient probative force that reasonable minds might differ as to the ultimate conclusion to be reached, it will be held that the evidence supports the judgment. Associated Employers Lloyds v. Self, Tex.Civ.App., 192 S.W.2d 902; Texas Employers Ins. Ass'n v. Moser, Tex.Civ.App., 152 S.W.2d 390; Associated Employers, Lloyds v. Groce, Tex.Civ.App., 194 S.W.2d 103; Great American Indemnity Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883.

Mrs. Isensee testified that she was twenty-seven years of age; that she was reared on a farm and had done farm work all of her life until she went to work at the Blue Bonnet Ordinance Plant, where she worked for eighteen months without missing a day; that she had never had any serious illness of any kind and had not been attended by a physician within seven years preceding her injury except when she had a miscarriage about seven years before, and as far as she knew she was strong and healthy up to the time she received her injury. Concerning her injury she testified that she was engaged in assorting cases of empty bottles; that she would take them off of a conveyor, place them on a table, then inspect them in order to remove all defective bottles, and after said inspection re-pack them. She further testified: "Well, at the time this happened we didn't have any trucks available so we stacked up the ware on the floor. Each girl stacked her ware up by the table on the floor. And when they brought the trucks in each girl took her own ware and put the boxes on the truck. And naturally it was stacked up pretty high. It was over my head. And I picked this last box off of the floor and as I picked this box up I felt a pain. Well, it made me sick. I got sick all over; sick at my stomach; and I dropped the box. I just got so sick so I dropped this box and stood up awhile until I felt better; straightened up a little while until I thought I could pick it up again. So I picked the box up and put it on the truck where I was supposed to. And I was real sick at that time and thought I had to go to the restroom and vomit, and so I did go into the restroom and came out and I laid down a minute on a cot; just a few minutes because we were not allowed to stay in there at the time, but I did lay down because I had to. And — well, I went on back on the job and we were on the last hour so there wasn't anything doing but cleaning up. We had finished our work and they were cleaning up. All the girls were cleaning up and I didn't do very much after I went back to work." She further testified that the pain she felt was in her lower abdomen and as she lifted the box and turned was when she felt said pain; that the pain was very severe and when she went to the restroom she discovered she was menstruating and she continued to do so until Wednesday or Thursday and that the flow was more than normal; that she couldn't figure out what had happened but she knew she had done something to herself; that she didn't really know that she was pregnant at the time but she thought she was; that she went back to work the next day and worked through Friday, thinking she would be all right, but she continued to feel very bad and had difficulty in performing her work; that the reason she went back to work was that she wanted to keep her job; that on Friday morning she went to see Dr. Howard Dudgeon because she had to have help, knowing that something was wrong; that she was sick and wanted him to examine her and find out what he could find out about it; that he examined her and gave her some medicine of some kind for the pains and cramps she had; that on Saturday she came to town and got her check; that she was still bothered with pains in her abdomen, and went into Penney's Store and after she got upstairs she got to feeling very bad and fainted in the store; that she was in there thirty minutes or longer and that she felt too bad to get anything she wanted, and went on down to Ward's to meet her husband, where he was waiting for her, and while standing there a few minutes she fainted again; that they gave her some water and brought her to, then her husband took her home and she was real sick and went to bed; that she was sick through Sunday and on Sunday afternoon she passed a membrane or something that looked like a piece of skin; that the following Monday night, on April 6th, she went to bed between 8:30 and 9:00 o'clock; that her heart began beating awfully fast and then the beating would check and when it checked she could hardly breathe and couldn't raise out of bed, that it was very painful when she attempted to get up or raise up; that her husband was afraid to leave her alone so he put her in the car and drove into town and phoned the glass company and was instructed to take her to the Providence Hospital and they would have Dr. Crosthwait to come out to see her; that she remained in the hospital for two days, during which time she had some temperature as high as one hundred degrees; that upon leaving the hospital she was sick and stayed in bed practically all the time; that she felt terrible and was very weak; that she started to menstruating a week after she left the hospital, which continued until she miscarried on May 31st, and she remained in bed three weeks thereafter; that she still suffers from pains in her abdomen every month and at times she is very...