184 Pa. Super. 622 | Pa. Super. Ct. | 1957
Opinion by
This is essentially a contest between two insurance carriers in a workmen’s compensation case. On June 1, 1955 claimant filed his claim petition with the Workmen’s Compensation Board, alleging that “The accident occurred while I was tending the drier when hot metal from the drier flew into my right eye” on March 10, 1955 (on which date Pennsylvania Manufacturers’ Association Casualty Insurance Company, hereinafter called “Pennsylvania,” was the insurance carrier for Colonial Aluminum Smelting Corporation, hereinafter called “Colonial,” the defendant). The claim petition further averred that as a result of this accident an infection set in the eye, causing the eventual removal of the eye on April 21, 1955. “Colonial” and “Pennsylvania” filed an answer denying the material allegations of the claim petition. On September 21, 1955 a hearing was held before a referee, at which time the claimant testified that he was hit in the right eye by metal turnings on March 10, 1955 and that he reported the accident to his foreman. Dr. Lombard testified that he first saw claimant on March 10, 1955; that he flushed dust particles from claimant’s eye with salt solution and gave him an antibiotic ointment to put in and then referred him to Dr. Deck. He also testified that he saw claimant only once and that was on March 10, 1955. The hearing was then continued owing to the absence of claimant’s other medical witnesses, Dr. Deck and Dr. Posey. A second hearing was held January 24, 1956, at which time Dr. Deck testified that claimant had suffered an earlier injury on November 4, 1954 and that, in his opinion, the loss of claimant’s eye was the result of the earlier injury (at which time American Mutual Liability Insurance Company, hereinafter called “American,” was the insurance carrier for “Colonial”). Dr. Posey testified that he removed the eye on April 21, 1955 and
*627 “I only used eye drops for a month following the first right eye injury that occurred November 1954.
“About one month after being treated by Dr. Lombard for the eye injury I received in March, 1955, I began to get severe pains above the right eye and along the right side of my head, and I reported this to Jack, the floor Supt., and he sent me to Dr. Deck, Lancaster, Pa., and when Dr. Deck examined me he sent me immediately to Dr. Posey, who examined me in his office and had me admitted to the St. Joseph’s Hospital, Lancaster, Pa., that same day about 9:00 p.m. My skull was X-rayed immediately and Dr. Posey operated that same evening. My skull was X-rayed following the operation and I received quite a few shots. I was in the Hospital about 13 days. I do not have any sight in my right eye now.
“Between November 1954 and March 1955 my right eye did not give me any trouble , or pain and I had no trouble seeing as I always did. It ivas after being hit in the right eye the second time, which was in March, 1955, that the sight in my right eye began going away and the pain developed in my eye and head.
“I see Dr. Posey in his office every Friday and I am to see him this coming Friday.
“I never wore glasses and never injured or had any trouble with my right eye before these accidents of Nov. 1954 and March 1955.”
On August 13, 1956, the referee found in favor of claimant and found as a fact that claimant’s condition was the result of an accident sustained by claimant on November 4,1954. The referee also found as a fact that claimant suffered an injury to his right eye while in the course of his employment with defendant on March 10, 1955. From this award both “American” and “Pennsylvania” appealed to the Workmen’s Compensation Board. “American” appealed from the. referee’s finding
On March 12, 1957 “Pennsylvania” appealed to the court below and excepted to the board’s substituted finding of fact. On April 23, 1957 “American” moved to quash the appeal as to it on the theory that it had not received timely notice of the appeal. The court below, on May 17, 1957, sustained the exceptions filed by “Pennsylvania” and remitted the record to the board “for action consistent with this opinion. . . .” “American’s” motion to quash the appeal was denied. The claimant and “American” separately appealed to us from the decree of the court below. “Colonial” and “Pennsylvania,” appellees, filed a motion to quash claimant’s appeal, alleging that the order of the court below is interlocutory. The order of the court below in effect held that the award of the board was not based on legally sufficient evidence. A clear question of law was thus presented to the court below and it was not necessary for that court to remit the record to the board for the entry of an order consistent with its opinion. No additional evidence was required and, therefore, there was no reason for the remission of the record to
“Colonial” and “Pennsylvania” also filed a motion to quash the appeal of “American” alleging (1) that the order of the court below is interlocutory and (2) that “American” has no status to appeal by reason of the fact that neither the board nor the court below has made any order placing a liability upon “American.” The order of the court below is not interlocutory but is a final and appealable order for the reasons hereinabove stated. We do not have to determine whether “American” is a party aggrieved by the decree of the court below. Two appeals were taken to this Court, one by the claimant and one by “American.” Both appeals involve the same question. Certainly the claimant is properly here and therefore we may properly pass upon that question.
The only real question involved in this appeal, as in the court below, is “whether the finding of the Board that the claimant has lost the use of his right eye in an accident occurring on March 10, 1955 is supported by substantial, competent evidence. . . .” The board having found for the claimant, the evidence must be viewed in the light most favorable to him and he must be given the benefit of all inferences reasonably deducible therefrom. Rice v. Public Meat Market, 166 Pa. Superior Ct.
The court below, in its opinion, said: “The conclusion reached by the Board that the March accident was the disabling one was based entirely on the statement made by -Dr. Deck in his letter to American and on a signed statement of the claimant obtained by a representative of American. The contents of Dr. Deck’s letter was admissible and competent only for the purpose of discrediting his prior oral testimony and not as substantive evidence of the information contained therein. The letter did not and could not establish as a fact that the disabling injury occurred in March 1955, only that the witness had made a statement contradictory to his oral testimony: Gougher v. Hausler, 388 Pa. 160; Zavodnials v. Rose & Son, 297 Pa. 86; Schier v. Melville, 279 Pa. 401.” We are in accord that self-impeaching evidence from one not a party in interest has no substantive value. In addition to the cases above cited, see also the opinions of this Court in Selden v. Metro. Life Ins. Co., 157 Pa. Superior Ct. 500, 507, 508, 509, 43 A. 2d 571; and Copello v. New Shawmut Mining Co., 179 Pa. Superior Ct. 227, 231, 232, 116 A. 2d 104. Therefore, the court below was correct in its conclusion that the letter of Dr. Deck of June 5,1955 could only be used to impeach him. The board, as the fact finding body, could find that his oral testimony before the referee, to the effect that the injury was caused by the accident which happened November 4, 1954, was not true. The doctor being a witness and not a party in interest, the board was not empowered, however, to find that his written statement in the letter of June 5, 1955, to the effect that the injury was caused by the accident-on
We cannot, however, agree with the conclusion of the court below as to the testimony of the claimant, Henry Leftwrich. What Chief Justice Jones said in Gougher v. Hansler, 388 Pa. 160, 166, 130 A. 2d 150, is particularly applicable to the present case: “But, in the case of a party to the proceeding, a prior statement by him inconsistent with his claim or testimony at trial, while it too has the effect of impeaching his credibility, is also admissible as an admission against interest and, as such, constitutes substantive proof of the truth of the matter therein contained. Its probative worth, of course, depends on its nature and the circumstance under which it was made. . . . Standing uncontroverted, such admissions, when clear and unequivocal, may properly be used to support a finding of fact:....” Dr. Posey testified that the claimant, in giving him a history, stated that he was struck in the right eye with a foreign body while feeding an aluminum drier in November; that he was seen by Dr. Deck approximately one week later; that his right eye stayed sore; that the vision of the right eye was normal prior to the accident (meaning the first accident). Counsel for “American,” at the last hearing, offered in evidence without objection the statement made by claimant on May 20, 1955 in
There was sufficient credible evidence to support the finding of the board and the action of the court below in remitting the record to the board for further action was in error.
Judgment is reversed and the record is remitted to the court below with directions to enter judgment in accordance with the award of the board entered as of February 20, 1957.