Opinion op the Court by
Affirming.
Williаm Valentine died November 2, 1918. At and prior to tliis date lie bad been employed as night watchman by appellee Weaver, trading' and doing business as the Ashland Foundry & Machine Co.
It was a part of decedent’s duty to prepare kindling for thе purpose of making'fires in the stoves to keep the shop warm. It is claimed that while cutting kindling at the foundry on October 25, 1919, decedent got a splinter in his finger and died a week later of septicaemia as a result of sаid injury.
Being of the opinion there was no competent evidence in the record showing decedent was injured or died from any injury rеceived in the course of his employment by appellee, the circuit court, upon petition for review, set aside the award so made by the board. The ease was tried in the circuit court on the record certified to it by the compensation board, the only evidence before the board being that introduced" by appellants. Sec. 1 of the compensation act (Ky. Stats. See. 4880) provides that the act affects the liability of employers subject thereto to their employes for personal injuries sustained by the accident arising out of and in the course of his employment or for death resulting from such accidental injury.
Sincе the sufficiency of the evidence to support an award is the real question in issue we will give a succinct statement of the testimony before the board, using, in the main, the phraseology employed by the witnesses: The first the widow knew of the accident was Saturday morning, October 26, about 9 or 9:30. Her husband had gotten home from work and after breakfast he took a nap; he awakened and said “I got a splinter in my finger at work last night; have been suffеring awful bad and can’t sleep.” He suggested that their son Jim look at the finger as he had such good eyesight. Her husband returned to work that afternoon, but soon came home. A doctor was called about 8 p, m. Decedеnt continued to grow worse all the time.
Decedent’s daughter Lida got breakfast for her father about 5 o’clock. He fixed to wash and said his finger was awful sore, and said: “I got a splinter in it down to the shop last night while getting kindling. ’ ’ She did not lоok at the finger.
The son James says that about 9 o’clock Saturday morning his father told his mother to look at his finger, and see if he had gotten a splinter in it. She told him to get me to look at it. I got a needle and looked at his fin-, gеr; there was a little hole in it. As soon as I touched it
Ed. Schultz, brother-in-law of Mrs. Valentine, was employed at same place as decedent. Witness was going home about 11:30 Saturday morning; he met decedent coming to town. Decedent showed him his finger, which was swollen, and said he had run a splinter in his finger dоwn at the shop the night before, while he was breaking kindling to kindle fires in the coke stoves to keep the shop warm.
Ered A. Lutz, foreman for appellee, was working at a temporary hospital on account of the flu epidemic. At 4 o’clock a telephone message was received to go to the plant and get Bill (decedent) and see what was the matter and take him home. One of decedent’s fingers was wrappеd up. He said: <£I am awful sick, it is my hand, that wound makes me sick.” He said, ££I run a splinter in my finger while cutting kindling here in the shop to build fires.”
Dr. DeBord attended decedent Saturday night. Patient was suffering with chills, a high temperature and complaining of Jais finger. Said he stuck a splinter in his finger while he was getting kindling to make a fire just after he went to work, or just after he quit work. Was under the impression he wanted to make a fire that morning; it may have been the fire was to have been made that night. It wаs too late to make an examination of the finger. Two days later the finger was in a terrible condition ; made a slight puncture to let some of the infection out. Patient grew worse all the time. Turned the case ovеr to Dr. Moore. The .septic condition found could have been due to a splinter. He did not find a splinter.
Dr. Moore saw the patient first on Sunday. Had elevation of temperature and gangrenous condition of onе finger. Patient said he had injured his finger and that he had run a splinter in it some days prior to that. Patient was taken to the hospital and finger amputated; he died of general septicaemia. Patient told witness, as well as he could remember, that while a)§ work he, the patient, ran a splinter in his finger. This man died from general septicaemia, due to infection of the finger although the time was short for such serious symptoms to be found; does not recall any case where such infection came on so quickly. Patient had practically same symptoms as flu. It was almost impossible to differentiate
Is this evidence sufficient to show that decedent was injured while in the performance of services for appellee, and was there any causal connection between the requirements of his work and the injury, i. e., did the injury arise out of and in the course of his employment?
Under sec. 52 of the act (Ky. Stats. Sec. 4935) if {there is no evidence to support the findings of fact, the \court may set aside the order, decision or award based rhereon.
As said in Milwaukee Coke & Gas Co. v. Industrial Commission,
Hearsay evidence alone will not support an award by the compensation boаrd, but its admission is not prejudicial if, independent of such evidence, there is sufficient legally competent evidence to sustain the award. The board is not to be governed by technical rules of evidence in the heаring of matters presented to it. As expressed in the act — its procedure shall be as summary and simple as possible. (Ky. Stats. Secs. 4930 and 4933.) It was the evident aim of the legislature in the passage of the act that controvеrsies arising thereunder should be promptly adjusted without regard to technical rules which oftentimes delay regular litigation; a simplified procedure in such matters was sought. \ But this does not mean that the elenxentary and fundamental principles of a judicial inquiry should not be observed. The act permits liberality in investigation and no more, and when incompetent and irrelevant testimony has been excluded, the findings and award must rest upon some competent and relevant evidence of a sound, probative character, be it direct or circumstantial. McCauley v. Imperial Woolen Co.,
When the evidence is all in it must be sifted and assorted, the competent separated from the incompetent, and out of the testimony there must come some reliable
Under the rule in this state touching' the competency cf medical testimony in detailing conversations had with patients as to the cause of an injury, it is competent for the patiеnt to furnish the physician with a history of the case in order that the physician might be enabled to render a proper diagnosis, and to intelligently treat the patient. It is presumed under such circumstances the party suffering will truly state how he was affected, otherwise the physician might be at a loss as to the remedies and treatment needful to his condition. A few cases will serve as illustrations.
In Omberg v. United States Mutual Accident Association,
In Massachusetts Bonding & Ins. Co. v. Duncan,
Reading the present record in the light of the doctrine enunciated in the foregoing decisions, it can readily be seen that appellants ^ave naught upon which to stand. There is a hiatus in the ^roof,' the attempt to supply same through the testimony of physicians having failed,
The testimony of the physicians that Valentine said he stuck a splinter in his finger and the time when this happened was competent, but it was not 'competent to state whsraihis-accident occurred. In other words it is proper to show the how and the when but not the whеre of the accident, i. e., the manner and time are competent but not the place.
The testimony is not sufficient to bring the statements under the res gestae rule. Such statements or declarations to he considered a pаrt of the res gestae must, as a general rule, be made contemporaneous in point of time with the particular transaction, at or near the place of its occurrence, and be explanatory of the main faci. A declaration so far removed in point of time from the main fact as to make it a mere narrative of a past transaction' or a declaration which does not explain the principal faсt, or which was made at -some distance from the place of its occurrence is not admissible in evidence as a part of the res gestae. Greenleaf on Evidence, Sec. 108; Illinois Central R. R. Co. v. Outland's Admrx.,
For the reasons given the judgment must be and is accordingly affirmed.