35 A.2d 598 | Pa. Super. Ct. | 1943
Argued December 8, 1943. The claimant in this workmen's compensation case is the widower of the deceased employee who died on January 31, 1941. Claimant's petition averred that his wife died as the result of an accidental injury received in the course of her employment with defendant employer, on January 23, 1941, and, in effect, that he was incapable of self-support at the time of his wife's death and was at such time dependent upon her for support. *108 An answer was filed in which it was denied that deceased suffered an accidental injury while in the employ of defendant employer, or that claimant was dependent upon his wife for support. The referee allowed compensation; the Workmen's Compensation Board affirmed the referee's findings of fact, conclusions of law, and award with the following additional informal finding: "In view of the entire record, we believe that claimant was incapable of self support at the time of his wife's death and that he was dependent upon her for support at that time." On appeal the court of common pleas affirmed the board and entered judgment on the award for claimant. The employer's insurance carrier has appealed.
The death of deceased resulted from traumatic myocarditis caused by a fractured rib. Concerning this there is no dispute, and it has not been questioned on this appeal.
The question presented is whether there is competent and substantial evidence in the record sufficient to sustain the findings of the compensation authorities (1) that deceased's injury which caused her death was sustained by her in the course of her employment on January 23, 1941, and (2) that claimant was incapable of self-support at the time of his wife's death and was at such time dependent upon her for support.
No one saw the accident, and the question is whether the statements by deceased were admissible as part of the res gestae, and sufficient with the other testimony to sustain the finding that deceased was accidentally injured in the course of her employment. If the declaration of deceased was inadmissible the award and judgment in favor of claimant must be reversed.
Appellant contends that there is no competent proof that deceased received the injury in the course of her employment with defendant employer which concededly resulted in her death eight days thereafter. *109
Deceased was employed by the Fibber and Mollie Tea Room, the proprietor of which was Paul McGhee who was assisted in its operation by his wife. Deceased's duties included opening the tea room about six o'clock in the morning, and cleaning the establishment. One of the usual tasks which deceased performed each morning was emptying the trash baskets into a tank about 100 feet from the tea room. Deceased's hours were from 6 A.M. to 10 A.M., six days a week. On the morning of January 23, 1941, deceased arrived at the tea room and began her work. Prior to that time she was apparently in good health. Mrs. McGhee came in about 8:30 A.M., and deceased told her that she had slipped and fallen while emptying the trash. Deceased's conversation with Mrs. McGhee at that time was related by the witness: "Q. Did Mrs. Whiting [deceased] say anything to you on the morning of the 23rd about falling? A. Yes. When I got up about 8:30 she said, `My side hurts. I was emptying a waste basket, I slipped and fell.' There had been a slight snow the night before. She said she slipped and fell, said her side hurt her. She said, `I've often had those things before. I'll be all right.' I said, `Don't you think you should see a doctor?'"
Deceased continued to report for work and perform her duties for the next three days, namely January 24th, 25th, and 26th, and on the 26th, after complaining about pain in her side, she was taken to a physician by defendant employer. It was found that she had a fractured rib, and traumatic myocarditis; she died on January 31, 1941, of traumatic myocarditis, at the age of 59 years.
There was medical testimony that the traumatic myocarditis caused deceased's death, that this condition was a result of the fracture, and that symptoms of traumatic myocarditis do not ordinarily appear immediately — a few days to several weeks may elapse. *110
The compensation authorities found and concluded that deceased sustained the fractured rib on the morning of January 23, 1941, while emptying a garbage or trash can in the course of her employment. It does not appear that deceased saw anyone other than Mrs. McGhee to whom she could have made the declaration. The time that may have elapsed between the occurrence and the declaration is important but not conclusive. Com. v. Stallone,
The record clearly establishes that claimant was incapable of self-support at the time of his wife's death, and was at that time dependent upon her for support. *112
Workmen's Compensation Act of June 2, 1915, P.L. 736, art. 3, § 307, as amended and reenacted by the Act of June 21, 1939, P.L. 520, § 1,
In view of our conclusion that the evidence is sufficient to sustain the findings of the board and the award in favor of claimant, it is unnecessary to consider the procedural question raised by claimant.
Judgment is affirmed.