Texas Employers' Ins. Ass'n v. Mask

• Decision Date: 28 April 1944
• Docket Number: No. 2447.,2447.
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. MASK et al.
• Court: Texas Court of Appeals

180 S.W.2d 369

TEXAS EMPLOYERS' INS. ASS'N v. MASK et al.

No. 2447.

Court of Civil Appeals of Texas. Eastland.

April 28, 1944.

Appeal from District Court, Shelby County; S. H. Sanders, Judge.

Suit under the Workmen's Compensation Act by Mrs. Beulah Mask and Alva Mask, widow and son, respectively, of C. M. Mask, deceased, to set aside an award of the Industrial Accident Board in favor of Texas Employers' Insurance Association. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Ramey, Calhoun, Marsh, Brelsford & Sheehy, of Tyler, and W. I. Davis, of Center, for appellant.

E. J. McLeroy, of Center, and Collins, Williams & Garrison, of Lufkin, for appellees.

GRISSOM, Justice.

This is a workman's compensation case brought by Mrs. Beulah Mask and Alva Mask, widow and son, respectively, of C. M. Mask, deceased, against Texas Employers' Insurance Association to recover compensation for the death of C. M. Mask on October 25, 1942. The injury was claimed to have been received by Mask on September 14, 1942, while he was acting in the course of his employment for B. & W. Construction Company, Inc. There was a judgment for the plaintiffs based upon a jury verdict, and the insurance carrier has appealed.

Only two questions are presented on this appeal. Defendant contends that there was no evidence, or no sufficient evidence, that (1) C. M. Mask received an accidental injury to his kidney, and (2) that such injury was a producing cause of his death.

There was evidence that on September 14, 1942, deceased was engaged in stacking six and eight inch iron pipe; that some of the joints of the pipe were forty and others sixty feet long; that the shorter pipe weighed several hundred pounds and was hard to handle; that some of the pipe had two joints welded together; that, under the direction and upon the insistence of his foreman, Mask tried to lift a heavy pipe; that he raised it about six or eight inches from the ground; that he dropped it and cried out that he had hurt his back, that he had torn something loose, that he had hurt his back and hurt it bad and torn something loose and had to go to the house and go to bed; that immediately thereafter he walked a few feet bent forward, holding his back with his hands, and sat down. That Mr. Mask, prior to this occasion, was a strong, healthy appearing man; that he had done hard manual labor many years prior to this occasion; that he was a good workman; that he had been doing hard, strenuous labor without difficulty; that ordinarily his face was red, that immediately after this occurrence his face was very white. Mask's fellow workman, who testified to the foregoing facts, further stated that he visited deceased at his home the second or third night after the accident; that Mask was in bed; that he appeared to be suffering; that large quantities of blood passed from his kidneys; that he couldn't rise from his bed without assistance; that he cried out in pain; that every time he moved he would complain of his back hurting him. His wife testified that when Mask returned to his home after the accident, that he said he had hurt his back lifting a pipe; that he didn't sleep any that night; that he suffered every time he moved and had an awful pain in his back and side; that on Friday night following his injury he almost cried all night; that he was up and down all night; that he steadily grew worse; that he had fever; that he was finally carried to a sanitarium where he died about 40 days after lifting the pipe. Dr. Windham testified that he was called on the case on October 13th; that he made an examination of Mr. Mask and got a history of his case; that Mask told him he had hurt his back lifting a pipe; that when he saw Mask he had an awful lot of pain and had a great deal of soreness and tenderness in his back and abdomen; that Mask couldn't turn over; that he was lying on his side, and that he examined Mask the best he could; that he had to turn him on his back; that he palpated his abdomen and back; that it caused Mask an awful lot of pain to move him. Dr. Windham again went to see Mask on October 20th. He testified that Mask had grown considerably worse and had definite peritonitis on October 20th; that he was distended quite a bit; that he had him removed to the hospital where he treated him until he died; that he died from peritonitis. He was asked what caused the peritonitis. He answered: "Well, it was some traumatic injury; internal injury to some of the organs, and my diagnosis was it was the kidney." Dr. Windham testified that his ultimate diagnosis was that Mask suffered an injury to his kidney, which developed into peritonitis that caused his death; that a man could injure the kidney by violently exerting himself lifting a heavy object; that he didn't think malaria would have produced peritonitis; that in his 36 years of practice he had never known of a person having malaria and malaria producing peritonitis and killing the man. Dr. Windham was asked on cross-examination whether the first time he saw Mr. Mask he formed a definite conclusion as to what was then causing his suffering. He testified:

"A. Yes. I felt sure that it was an injury to, as I said, to some internal organ, and I felt like it was a kidney, from the soreness he had and history of having passed the blood like he did; was bound to have been his...