Broad Street Trust Co. v. Heyl Brothers

• Decision Date: 15 July 1937
• Docket Number: 13-1937
• Parties: Broad Street Trust Company, Appellant, v. Heyl Brothers et al
• Court: Pennsylvania Superior Court

193 A. 397

128 Pa.Super. 65

Broad Street Trust Company, Appellant, v. Heyl Brothers et al

No. 13-1937

Superior Court of Pennsylvania

July 15, 1937

Argued March 8, 1937

Appeal from judgment of C. P. No. 5, Phila. Co., June T., 1936, No 2203, in case of Broad Street Trust Company, Guardian of Anna and John Kalvinskas, minors, v. Heyl Brothers et al.

Appeal from award of Workmen's Compensation Board.

The facts are stated in the opinion of the Superior Court.

Appeals sustained, decision of board reversed and judgment entered for defendant, opinion by Lamberton, J. Claimant appealed.

Errors assigned, among others, related to the action of the court below in sustaining defendant's exceptions to the action of the board.

Judgment reversed.

Hubert J. Horan, Jr., with him T. F. Deady, for appellant.

Robert C. Fable, Jr., with him Raymond A. White, Jr., for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Keller, P. J.

There is no reasonable doubt that Antenas Kalvinskas, the father of the minor dependent claimants, died on April 12, 1935, from streptococcic septicaemia or blood poisoning as a result of an infection of the right thumb, received through a cut or scratch. In the words of the coroner's physician, "I believe undoubtedly he had an infection of the hand resulting in generalized invasion of the bloodstream, and death." The records of the Pennsylvania Hospital to which he was taken on April 4, and where he died, and the laboratory report of the pus cells taken from his right hand confirm this.

Kalvinskas worked as a laborer for the defendants, Heyl Brothers, manufacturers of syrups, and it was part of his duties to fill barrels with syrup, and roll them into the aisle where the shipper would weigh them. The barrels were wooden barrels with iron or wire hoops. He worked on the first floor of the plant, and his home was two squares distant from his place of work -- one block by the railroad. His quitting time was four o'clock in the afternoon. On the afternoon of April 2, 1935, he came home from the plant -- arriving not later than 4:15 -- with his right thumb bleeding from a cut or scratch. He washed it, put some peroxide on it and bandaged it. As soon as he came into the house to get the peroxide he told his daughter, aged fourteen years, that he had cut his thumb on the hoop of a barrel at the plant. At about the same time he told John York, who had lived with him for two years and "make for him eats," that he had cut his thumb on a barrel hoop, while rolling barrels at the plant, a couple of minutes before he came home. The thumb was bleeding slightly at the time, and he washed it and put peroxide on it. The next day he went to the plant and worked all day, but the morning of the day following, April 4, the hand and arm had swollen so that he was not able to work and York reported for him at the plant that he was sick. The foreman told York to tell Kalvinskas to come there, which he did, arriving about nine-thirty o'clock. He showed the foreman, Joseph Bagdon, his hand which, at that time, was "swollen something awful," and told him he had cut it on the afternoon of April 2d on a barrel hoop, while rolling barrels. On the afternoon of the same day he was taken to the hospital, where the hand and arm grew worse, causing his death on April 12th, with complication of bronchial pneumonia, induced by the streptococcic infection. All of the patient's statements to the doctors and attendants, as noted in the hospital history of the case, were consistent with his original declarations. There was also the additional evidence that when he left home after lunch to go back to his work, there was nothing wrong with the thumb.

The only real question involved in this appeal is whether there is any competent evidence in the record to sustain the finding that the injury to Kalvinskas' thumb, which undoubtedly caused his death, was received by him while at work in defendant's plant on the afternoon of April 2, shortly before quitting time. The learned court below reversed the award of the board in favor of the claimants based on the findings of the referee, which had been adopted and approved by it, on the ground that competent evidence to support them was wholly lacking. We feel obliged to differ from the court and agree with the board that there is competent evidence to sustain the award.

1. Leaving out of the case, for the present, consideration of the declarations made by the employee to his daughter, to York, and to Bagdon, the defendant's foreman, as being too remote in time to constitute part of the res gestae, we are of opinion that the circumstantial evidence in the case pointed clearly to the injury to the thumb as having been received while at work at defendant's plant. When he left home to go back to his work, after lunch, the thumb was not injured. His work required the rolling of heavy barrels with iron or wire hoops, which might easily cause a cut or scratch of this nature. He lived only a stone's throw from the plant and on arriving home at the close of work, his hand was still bleeding from a cut or scratch which must have been lately received. There was no evidence tending to show that he had done anything on the way home, after leaving his work, to cause the scratch. The fact finding body has a right to use the conclusions and tests of everyday experience and draw the inferences which reasonable men would thus draw from similar facts: Neely v. Provident Life & Acc. Ins. Co., 322 Pa. 417, 185 A. 784; and these all point to an injury at work, rather than on the short walk home. The circumstances were no stronger in the following cases, which were held sufficient to sustain an award or verdict, leaving out of consideration the declarations of the deceased, as not falling within the res gestae rule: Wiltbank v. Fire Assn. of Phila., 293 Pa. 206, 142 A. 208; Johnston v. Payne-Yost Const. Co., 292 Pa. 509, 141 A. 481; Bracken v. Bethlehem Steel Co., 115 Pa.Super. 251, 175 A. 643; Tomczak v. Susquehanna Coal Co., 250 Pa. 325, 327, 328, 95 A. 465; McCauley v. Imperial Woolen Co., 261 Pa. 312, 323-325, 104 A. 617; Smith v. Welsh Bros., 102 Pa.Super. 54, 57, 156 A. 598; Thompson v. Conemaugh Iron Works, 114 Pa.Super. 247, 255, 256, 175 A. 45; Van Eman v. Fidelity & Casualty Co., 201 Pa. 537, 51 A. 177; Neely v. Provident Life & Acc. Ins. Co., supra; Wolford v. Geisel, 262 Pa. 454, 105 A. 831; Brandenburg v. Boos Dairies, 105 Pa.Super. 25, 158 A. 578; Falls v. Tennessee Furniture Co., 122 Pa.Super. 550, 186 A. 272.

2. But we are not satisfied that Kalvinskas' declarations to his daughter and to York were made under circumstances that took them out of the res gestae rule. They were made within 20 or 25 minutes after the occurrence of the injury. They were spontaneous declarations, uttered within a short time after the occurrence and while he was still affected by it, for his first act on arriving home was to wash the cut and put peroxide on it. Declarations made from fifteen minutes to thirty minutes -- and in some cases even longer -- after the event, were held admissible as part of the res gestae in Eby v. Travelers Ins. Co., 258 Pa. 525, 530-534, 102 A. 209; Smith v. Stoner, 243 Pa. 57, 63, 89 A. 795; Rodgers v. Woodcock Valley Tel. Co., 92 Pa.Super 445; Com. v. Stallone, 281 Pa. 41, 126 A. 56; ...