Duarte v. Industrial Accident Commission

TYLER, P. J.

Certiorari

to review the findings and award of the Industrial Accident Commission denying compensation for the death of one Ysaae Duarte, husband and father, respectively, of the petitioners.

The deceased was an employee of respondent American Smelting and Refining Company. After rehearing, benefits were finally denied by the Commission upon the ground that there was a want of sufficient evidence to establish that death was proximately caused by any injury occurring in the course of employment, or arising out of the

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same, or that the employee sustained any injury at all at the time asserted in connection with such employment.

In support of her claim for death benefits the widow of Duarte testified in substance that on the sixteenth day of October, 1924, her husband left their place of residence to attend to his daily labor for the American Smelting and Refining Company, whose smelting works then and now are located at the town of Crockett; that in the evening of said day and upon his return from Avork he complained to her that he had been injured in the course of his employment; the injury had occurred Avhile he and a felloAV-employee were attempting to lift a ear loaded with metal that had been derailed for the purpose of replacing it upon the track; that they had used as a lever a pole in connection with their work which the other employee had let go of and in consequence the same had struck her husband on the chest and injured him. She further testified that she called in a physician who placed bandages on her husband’s chest; that he Avas subsequently attended by other physicians, but his condition became worse and he died on the twenty-third day of October following. Dr. Fernandez, the physician first called to attend the deceased, testified that Duarte had informed him that he had been injured while at work and that he thought he might be suffering from a fractured rib and bandaged him accordingly. That deceased returned to his work for tAvo days and then quit.

Petitioners also introduced certain hearsay testimony to the effect that the deceased and others had stated that Duarte had been injured while at work.