54 A.2d 291 | Pa. Super. Ct. | 1947
Argued April 16, 1947. In this workmen's compensation case, the widow of Glenn Lambing, a loading machine operator employed by the defendant in its mine, filed a claim petition on *348 behalf of herself and four minor children, averring that the decedent on July 5, 1944, while in the course of his employment, was injured by the fall of a mine timber, receiving injuries which resulted in his death on October 19, 1944. An answer was filed denying that Lambing sustained an accidental injury in the course of his employment and that his death resulted therefrom, and also raising the question of notice. After hearing, the referee made an award which was upheld by the board and the court below and this appeal was taken by the defendant employer.
The referee, affirmed by the board, found as a fact, inter alia: "Fourth: On July 5, 1944, the decedent was bruised on the right shoulder with a timber in the course of his regular employment with the defendant and, as a result thereof, this wound became infected and the decedent came to his death on October 19, 1944, from staphylococcic septicemia and acute pulmonary edema which, in the opinion of your Referee, was caused by the bruise received in the accidental occurrence of July 5, 1944." The first question involved in this appeal is whether this finding of fact is supported by competent evidence, and unless it can be said that the findings are not supported by substantial competent evidence, they cannot be disturbed. Petrovan v.Rockhill Coal Iron Co.,
The only medical witness in the case, Dr. H.S.D. Mock, who had attended the decedent, testified, inter alia: "Q. And what was the cause of death? A. The cause of death was staphylococcic septicemia and empyema. *349
In other words, septicemia is a germ in the blood stream and empyema is multiple pus, pus in the blood accompanied by pus all through the body. . . . Q. Taking into consideration, Doctor, the history that you received from the claimant and the findings on your physical examination and the eventual cause of death, are you able to state whether or not there is any connection? A. In my opinion, the wound on his shoulder became infected with this staphylococcic germ, which spread through his body and was the cause of his death. Q. Doctor, how does one contract such a disease as staphylococcic germ? A. It comes through a break in the skin. Q. Is that the only way it comes or can be contracted? A. Yes. Q. Are you able in your professional opinion to say where this germ had its portal of entry? A. The right shoulder. Q. At the point of injury, Doctor? A. Yes, sir." This testimony is sufficient to establish the causal connection between the bruise on Lambing's shoulder and his death. However, a more difficult problem is presented by defendant's contention that there is not sufficient evidence to support the referee and board's finding that "the decedent was bruised on the right shoulder with a timber in the course of his regular employment with the defendant". The decedent was working alone, there were no eye witnesses to the accident and an accident cannot be inferred merely from an injury. There must be some evidence, direct or circumstantial, in the latter instance, clearly and logically indicating it. Adamchick v. Wyoming Valley Collieries Co.,
The testimony shows that the decedent left his home at 9:30 p.m. to start his work in defendant's mine at 10 o'clock on the night of July 5; that he operated a loading machine in room No. 6; that sometime before 5 o'clock the next morning a 12-foot 200-pound roof timber in room No. 6 fell to the ground; that a witness, Crawford, had been sent at 5 o'clock to replace the timber, and the decedent was then working in room No. 4, *350 having "cleaned up" room No. 6; that at 6:30 in the morning Crawford and the decedent rode to the surface on the same man trip and left the defendant's mine together. Crawford testified that the decedent stated to him, "He said his shoulder was bothering him. He said, `You know that timber you replaced, Crawford?' I said, `Yes'. He said, `That is the timber that hit me on the shoulder'"; and referring to Lambing, "He unbuttoned his shirt — he had light underwear on and his shirt and coat, and he pulled his shirt back and showed me the bruise he had on his shoulder. Q. Which shoulder was it on? A. The right shoulder."
The widow testified that when the decedent left the home on the night of July 5, he was in "perfect" condition, that she saw his back and shoulders and there were no bruises or marks on them; that when he returned to his home about 7 o'clock the next morning, he said, "I got hit last night", and that "When he took his underwear off to bathe, his shoulder was cut and bruised, you know, skinned, just like something had hit him, you know. Q. What shoulder was it? A. Right shoulder." and "He told me timber had got knocked out and come down and struck him on the shoulder. Q. Did he say where this occurred? A. No, where he was working, but I don't know just where he was working here. Q. In the mine? A. It was in the mines where he was working." She testified that she treated the bruise with mercurochrome and she was corroborated in this by a neighbor woman, Mrs. Oswalt, who also saw the bruise and the application of mercurochrome.
Aside from the hearsay evidence, which we will discuss later, it is our opinion that there is sufficient direct and circumstantial evidence to support the finding that the decedent was injured during the course of his employment. In our opinion this case is not distinguishable from Ceccato v. Union CollieriesCo.,
In Heite v. Vare Construction Co.,
In the instant case, it is in evidence that the decedent was unbruised when he went to work, that a roof timber had fallen in the room where he had been working that night, and that he had the shoulder bruise when he left the mine the next morning. Under this evidence we believe that it is reasonable to conclude that there was a natural connection between his work and the accident and that the circumstances would appear to be such as to satisfy "reasonable and well balanced minds that an accident did occur".Piotrowski v. Dey Co., *352
The defendant objected to the testimony of Crawford on directexamination and of the widow relative to statements made to them by the decedent concerning the manner in which he had been injured. The board and the court below held that the statements of the decedent were not part of the res gestae and we agree with that conclusion, as it was not shown that "they were made under such circumstances as would raise the reasonable presumption that they were spontaneous utterances of thoughts created by or springing out of, the transaction itself, and so soon thereafter as to exclude the presumption that they were the result of premeditation and design." Broad Street Trust Co. v. HeylBrothers, supra. However, when the defendant cross examined Crawford, it did not question him relative to any of the testimony he had given on direct examination but examined him solely in regard to certain statements allegedly made by him to named individuals who were subsequently called by the defendant to impeach Crawford's credibility. Inter alia, the defendant asked Crawford, "Q. And did you discuss the case with them or did they just tell you — A. They just asked me if I knowed anything about anyone getting hurt at the mine. I said I didn't know much about it. I told them he just told me he had been hit with this timber, been knocked out". The defendant *353
made no motion to strike out this testimony but continued with its cross examination. Consequently, it is properly in the record(Poluski v. Glen Alden Coal Co.,
It is our opinion that the finding that decedent's death was caused by an injury received in the course of his employment is supported by substantial competent evidence. However, the appellant employer contends further that the widow and dependent children are barred from compensation benefits because no notice of the injury was given to the employer under the provisions of the Act of June 2, 1915, P.L. 736, Article III, section 311 as amended,
In Rossi v. Hillman Coal Coke Co.,
The question is whether the requirement as to notice of an injury refers to the rights of a dependent widow and children. As stated by Judge (now President Judge) RHODES in Polk v. WesternBedding Co.,
Appellant argues with some force that by the use of the words ". . . or some of the dependents or some one in their behalf . . ." the legislature intended the notice to be mandatory in all cases but we do not believe that the legislature so intended. The employee's right arises with his accidental injury and he has a co-existing remedy. The widow's right, altho it must be based *355 upon the injury, does not come into existence until the death of her husband employee and is dependent upon his death. In this case, her right did not come into existence until October 19, 1944, but, at that time, under appellant's contention, she would have no remedy because notice had not been given to the employer. We cannot believe that the legislature in one section of the Workmen's Compensation Act would provide for compensation for the widows and children and in the same act declare that such compensation would be forfeited unless they within ninety days of an injury to the employee, no matter how trivial the injury might seem to be — as in this case — give notice of that injury to an employer known to them perhaps only by name. An employee comes in direct — perhaps daily — contact with his employer or the employer's representative but dependents may never come in contact with them. It is reasonable to require an employee to give notice of his injury to his employer but, in our opinion, it would not be reasonable to impose that burden on his widow or children.
Section 311 of the Workmen's Compensation Act is to be liberally construed (Uditsky v. Krakovitz,
The claim petition in this case having been filed on September 20, 1945, it met the statutory requirement of section 315 of the Workmen's Compensation Act of 1915 as amended,
Judgment affirmed. *356