Brown v. General Ins. Co. of America

• Decision Date: 20 March 1962
• Docket Number: No. 6979,6979
• Parties: Henrietta Helen BROWN, as Widow and as Administratrix of the Estate of Orville H. Brown, deceased, Plaintiff-Appellee, v. GENERAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 968

369 P.2d 968

70 N.M. 46

Henrietta Helen BROWN, as Widow and as Administratrix of the

Estate of Orville H. Brown, deceased,

Plaintiff-Appellee, v. GENERAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.

No. 6979.

Supreme Court of New Mexico.

March 20, 1962.

Gilbert, White & Gilbert, Santa Fe, for appellant.

Edward J. Apodaca, Gerald D., Fowlie Phillip D. Baiamonte, J. Victor Pongetti, Albuquerque, for appellee.

COMPTON, Chief Justice.

This is an action for workmen's compensation benefits. The claimant is the widow of Orville H. Brown whom she alleged died as the result of a heart attack arising out of and in the course of his employment by appellant. Appellant denied any causal connection between the death of Brown and his employment. The cause was tried to a jury and judgment was entered on a verdict for claimant. On appeal, appellant seeks a reversal of the judgment and a new trial on the grounds that the only evidence tending to support the verdict was either inadmissible hearsay or incompetent.

On June 2, 1958, Orville Brown, aged 44, accepted employment with appellant as a multiple line inspector. He had previously been a warehouseman, stationary engineer and fireman, building inspector and boiler and machinery inspector. His new duties were to include the performing of insurance risk and government authority inspections upon boilers, stationary machinery, elevators and buildings generally in and about New Mexico. A pre-employment physical examination on June 2, 1958, showed him to be in good health. Pursuant to orders he arrived in Seattle, Washington, the home office of appellant, on June 8, 1958 for a two-week training or orientation course prepared especially to fit his particular training needs, and was provided with accommodations at a hotel across the street from the home office. He received instruction from different members of the home office personnel on various phases of the insurance business, including field inspection work, five days a week from 8 a. m. to 4:30 p. m. with 45 minutes for lunch. He was furnished with related material to read on his own time.

Toward the end of the second week of the training course, either late on the night of Thursday, June 19th, or early in the morning of Friday, June 20th, Brown was awakened from sleep suffering from what was diagnosed the following day as a coronary occlusion and was hospitalized. Decedent told the treating physician where he was employed and the reasons for seeking medical help, but made no statements concerning his work in the training course. The claimant arrived at his bedside on Saturday night, June 21st, and remained with him until his death on July 2nd, during which time she was able to talk with him. An autopsy revealed progressive arteriosclerosis of the coronary arteries of some duration. The cause of death is not disputed. also undisputed is the fact that except for one evening spent at dinner with a member of the home office staff, no one was able to testify of their own knowledge how decedent occupied himself out of his regular training hours.

The claim for compensation is based upon physical and emotional strain due to the unusually severe nature of decedent's training course alleged to be the proximate cause of the heart attack resulting in his death. In support thereof there was admitted in evidence, over objection, (a) declarations made orally and in writing by decedent to his wife both before and after the heart attack concerned with how hard he had to work day and night and his great desire to succeed at the job; (b) declarations allegedly made by an employee of appellant; and (c) testimony of a former employee of appellant, whose position was filled by decedent on the witness' resignation, and relating to the orientation course taken by the witness 3 years previously in addition to his opinion regarding the rigor of decedent's training course.

It is appellant's first contention on appeal that the declarations of decedent to his wife were pure self-serving inadmissible hearsay and that they should have been excluded by the trial court. The claimant testified that she knew how many hours, day and night, decedent was working, the type of work he was doing and the exertion he was undergoing in the training course as the result of her conversations with him while he was in the hospital, from his letters to her and from telephone calls. She was then permitted, over objection, to testify to conversations she had with decedent while he was in the hospital, 3 days or more after the heart attack, as follows:

'A. My husband said he had worked very hard. He said he had never worked so hard in his life as in the past two weeks. He had worked in the day time. He had to learn appraising, bidding, all of these different sorts of things that he did not know anything about. He said he had to study each night books and he studied late every night until one or two o'clock in the morning to be ready for the next day to go in and to be questioned and to learn policy. He said he did know whether he was going to be able to absorb all of this. It was so much responsibility. He said the appraising alone was a worry to him because he understood that if he would overbid on a job and cost General Insurance thousands of dollars because he was an inexperienced man, he did not know how to appraise. Then he said he was very nervous and worked up over this course and he was so worried because he said 'I want this job so badly, and I want to make a good record up here."

This testimony was unquestionably hearsay and self-serving and was offered to prove the truth of the statements contained therein. Unless its admission properly comes within an exception to the hearsay rule, the court below erred in not excluding it. No contention is made by appellee, and properly so as we view it, that the declarations were admissible under any well-recognized exception to the hearsay rule.

It is interesting to note that both appellant and appellee seek strong support from the case in In re Roeder's Estate, 44 N.M. 429, 103 P.2d 631, wherein this court, in admitting the declarations of a deceased testator in order to determine whether a page had been substituted in the will offered for probate, found that while the declarations did not fall within any of the clearly defined exceptions to the hearsay rule, under the circumstances of that case the declarations met the requisites of 'necessity' and 'circumstantial guarantee of trustworthiness,' two principles considered as prerequisites to the admission of all hearsay testimony under exceptions to that rule. 5 Wigmore on Evidence, 3d ed., Sec. 1420. Dallas County v. Commercial Union Assurance Co. (U.S.C.A. 5th Cir. 1961), 286 F.2d 388; Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498.

This court was not called upon in the Roeder case to decide if 'necessity' alone, by virtue of declarant's death, was sufficient grounds for the admission of the declarations. We said there:

'* * * Admission, therefore, if at all, must be based upon one of the more controversial exceptions as judged from the necessity and trustworthiness angles.'

The situation there was found to be analogous to will contests on the grounds of forgery where evidence is offered to show that what is sought to be probated as a testator's will is in fact not his will, since forgery may consist in alteration of an existing instrument, and authorities were cited to support the admission of such declarations to show pre-existing testamentary design. In will contest cases the necessity is clear for the testator is dead. The special reliability or trustworthiness, in most cases, is strongly supported by his firsthand knowledge and his lack of selfish interest. McCormick on Evidence, Sec. 271, pp. 576-577. Nor was 'necessity' alone the basis of our decision in Barney Cockburn & Sons v. Lane, 45 N.M. 542, 119 P.2d 104, where the declarations of decedent fell within the clearly defined exception to the hearsay rule relating to 'state of mind' when in issue, and were found to be corroborative of other evidence of decedent employee's previous acts. See Texas Employers' Insurance Association v. Chunn, Tex.Civ. App., 274 S.W.2d 939; American General Insurance Co. v. Jones, 152 Tex. 99, 255 S.W.2d 502; and Raborn v. Hayton, 34 Wash.2d 105, 208 P.2d 133. Nor was 'necessity' alone the basis of our decision in Hamilton v. Doty, 65 N.M. 270, 335 P.2d 1067, where the hearsay admitted went to the extent and duration of claimant's disability and was corroborative of medical and other testimony.

Appellee urges that the doctrine of liberal construction of workmen's compensation acts, as previously expressed by this court, is pertinent in this case. It is to be noted, however, that in all of the cases cited by appellee on this doctrine of liberal construction, it has been applied to the interpretation of the Act, and in a few cases to the weight and sufficiency of the evidence, but not to the rules of evidence. As stated in Hamilton v. Huebner, 146 Neb. 320, 19 N.W.2d 552, 163 A.L.R. 1, by the Supreme Court of Nebraska:

'The rule of liberal construction of the Workmen's Compensation Act applies to the law, not to the evidence offered to support a claim. The rule does not dispense with the necessity that claimant prove his right to compensation * * * nor does it permit a court to award compensation where the requisite proof is lacking.'

The case of Devlin v. Department of Labor and Industries, 194 Wash. 549, 78 P.2d 952, cited by appellee as an example of liberal construction of the Washington State Workmen's Compensation Act, which it was contended would have admitted the hearsay testimony complained of here, was decided under one of the well-defined exceptions to the hearsay rule admitting the hearsay statements made by the workman as a part of the res gestae because spontaneously uttered.

While recognizing the trend toward a greater...