Texas Employers' Ins. Ass'n v. Drews

• Decision Date: 11 June 1927
• Docket Number: (No. 9961.)
• Citation: 297 S.W. 630
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. DREWS.
• Court: Texas Court of Appeals

297 S.W. 630

TEXAS EMPLOYERS' INS. ASS'N v. DREWS.

(No. 9961.)

Court of Civil Appeals of Texas. Dallas.

June 11, 1927.

Rehearing Denied July 9, 1927.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit by Mrs. Olga H. Drews against the Texas Employers' Insurance Association to set aside an award of the Industrial Accident Board denying compensation for death of Gustave H. Drews, an employee of the Mosher Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawther, Pope, Leachman & Lawther, of Dallas, for appellant.

White & Yarborough, of Dallas, for appellee.

JONES, C. J.

This is an appeal by Texas Employers' Insurance Association, appellant, from an adverse judgment in favor of Mrs. Olga Drews, appellee, in a district court of Dallas county, Tex., allowing appellee compensation of $13.71 per week for 360 weeks, from the 3d day of March, 1925, as the sole dependent of her husband, Gustave H. Drews, deceased, less 33 1/3 per cent., which was awarded to John White for services as attorney for appellee in the litigation. The following is a sufficient statement of the case:

The deceased, Gustave H. Drews, had been for 31 years an employee of Mosher Manufacturing Company, in the city of Dallas, and on the 3d day of March the said Drews died from the alleged result of an injury received while performing the duties of his employment. Appellant had theretofore issued to the Mosher Manufacturing Company a policy of insurance covering accidental injuries resulting in disability or death to the employees of said company. Appellee, as the wife of the deceased, under the undisputed evidence, is the only beneficiary of this policy. In due form claim for compensation was made before the Industrial Accident Board, and upon a hearing recovery on the policy was denied by said board, on the ground that the death was not the result of any injury received in the course of deceased's employment. Suit was duly and legally filed in the district court of Dallas county to set aside this award and to recover the full compensation that could be allowed appellee under the Workmen's Compensation Act (Rev. St. 1925, art. 8306 et seq.). The undisputed evidence showed that deceased died from erysipelas of the head and face. The contested issues determined under the pleadings and evidence in the trial court were: (1) Did deceased receive a burn on the top of his head on or about the 17th of February, 1925, previous to his death on the 3d of March following? (2) Was the erysipelas which caused deceased's death the proximate result of such injury?

The case was submitted to the jury on special issues, on which the findings of the jury are: (a) Gustave H. Drews, deceased, was injured while in the course of his employment; (b) such injury was the proximate cause of the death of Gustave H. Drews, deceased.

The evidence as to the weekly earnings of the deceased was undisputed, and upon this verdict the said judgment was entered. The findings of the jury are supported by evidence and are adopted as the findings of this court as well as the findings of the court on undisputed matters necessary to the rendition of the judgment.

Appellant's theory on the trial of the case in the lower court and on this appeal is that the deceased received no injury at the time and on the occasion alleged, and that his death resulted from erysipelas not resulting from any injury received by him while in the course of his employment; that the findings of the jury above quoted are unsupported by evidence and form no basis for the judgment; that the court should have given a requested peremptory instruction in its favor; that this court should hold that the evidence is insufficient to sustain the findings and reverse and render this case in its favor. If appellant be mistaken in this contention, then it urges that the case should be reversed and remanded because of numerous assigned errors on the action of the court in the admission of certain evidence over appellant's objection. Bills of exception were duly taken to the admission of this evidence, and these contentions of appellant are duly presented to this court by proper assignments of error and propositions of law.

Was the evidence sufficient to submit to the jury issue No. 1, requiring a finding by the jury as to whether deceased suffered an injury in the course of his employment? The witnesses do not fix with exactness the date of the alleged injury, the deceased made to his employer no report of any injury at any time, and no employee who was associated with the deceased in his work from the time it is alleged the injury occurred, until he quit work on account of his illness, a few days thereafter, testified that he noticed any injury on the head, or heard deceased complain of any injury. The two physicians who attended deceased from the 28th of February until his death did not observe the presence of any injury on his head. By this testimony, appellant made a prima facie case of no injury. Deceased's employment was termed a cupelo tender. A cupelo is a large vessel in which, by means of a coke fire and a blowpipe, iron that has been dropped into the cupelo is reduced to a molten mass, from which it is withdrawn. After all of the molten iron that can be withdrawn has been taken from the cupelo, it was the duty of deceased, by means of a long iron bar, to open what is termed the doors at the bottom of the cupelo and let the slag and other heated matter that remained in the cupelo fall out. Deceased's son testified to being in the cupelo room on the occasion of the afternoon of the day on which it is alleged the injury occurred and seeing deceased open the door and let out the "slag," and that he saw some of the molten matter...