This is an original proceeding in this court by the Atlantic Oil Producing Company to review an award of the Industrial Commission, awarding compensation to C.W. Malone.
It appears that claimant, while in the employ of the petitioner, on the 3rd day of July, 1930, sustained certain injuries to his back and kidney. He was at that time engaged in cleaning a boiler and was using a water hose. A fellow workman turned the water into the hose claimant was using in such way and manner that the force of the pressure knocked him backwards against a pipe and gate valve, causing the injuries complained of. Plaintiff was receiving at that time $7.50 per day as his wages.
Petitioner paid him compensation from date of the injuries at the rate of $18 per week, until the 3rd day of October, 1930, at which time it discontinued compensation, contending that claimant had completely recovered.
Claimant then filed a motion before the Commission praying that compensation be continued. A hearing was had on the motion. The Commission found that, among other things, claimant received an injury to his kidney growing out of the accident complained of, and that he was thereby temporarily totally disabled, and awarded him additional compensation at the rate of $18 per week; payments to continue until further order of the Commission.
Petitioner contends that the award is not sustained by the evidence; that claimant's injuries to his kidney did not result from the accident, but was due to other causes.
Claimant testified that he received an injury as above detailed; that he continued working for petitioner several days after the injury, at which time he was laid off because of inability to do the work; that he informed Ed Rice, a fellow employee, of the injuries at the time; that shortly after the injuries, he discovered a pain in his back and right side; that he suffered considerably therefrom, and that the condition still exists; that he was a healthy able-bodied man prior to the injuries; that he has not been able to work since; that he had received no injury prior nor subsequent thereto.
Several physicians testified that claimant was suffering from an injury to his right kidney. As to the cause of the injury and the extent thereof, one of the doctors testified:
"Q. Doctor, I will ask you to state to the court what relation, if any, the accident which the claimant sustained on the 3rd day of July, 1930, bears with his present condition of which you speak in your conclusions? A. It is my opinion that it is probably directly responsible to his present condition. Q. Do you think this man is able to perform any kind of work at this time? A. I don't think he is."
Dr. Rice testified as follows:
"Q. Did he have any soreness In the ribs? *Page 69 A. Not particularly. Q. Did he have below the kidney? A. Yes, in the fractured ribs of the kidney development. Q. Did you diagnose this particular malady by any name? A. I felt he had an infection of his kidney pelvis, or pyelitis, as a result of or aggravated by trauma. * * * Do you want my conclusion? Q. Yes. A. I believe this injury due to trauma to the right kidney with some deformity of the pelvis, and it will completely recover with rest in bed."
The evidence is conclusive that at the time of the hearing claimant was still suffering from an injured kidney.
Petitioner offered evidence to the effect that the condition of the kidney was due to a disease, and did not result from an accident, thus raising a conflict in the evidence. The Commission resolved this conflict in favor of claimant. In our opinion, there is competent evidence to sustain its finding, and we are bound thereby.
The Commission also found that four of claimant's ribs were broken as a result of the accident. This finding is challenged by petitioner. We discover no evidence to sustain this finding. We, however, think this immaterial. Claimant, at the hearing, expressly disclaimed compensation because of injury to his ribs. He only claims compensation for injury to his right kidney. Eliminating this portion of the finding, the award must, nevertheless, be sustained because of injury to the kidney.
Petition to vacate is denied.
LESTER, C. J., CLARK, V. C. J., and RILEY, SWINDALL, ANDREWS, McNEILL, and KORNEGAY, JJ., concur. CULLISON, J., absent.
On Rehearing.