Ceccato v. Union Collieries Co.

• Court: Superior Court of Pennsylvania
• Writing for the Court: CUNNINGFIAM, Judge
• Citation: 15 A.2d 401
• Decision Date: 02 October 1940
• Parties: CECCATO v. UNION COLLIERIES CO.

15 A.2d 401

CECCATO
v.
UNION COLLIERIES CO.

Superior Court of Pennsylvania.

Oct. 2, 1940.

Application for Allocatur Refused

Nov. 25, 1940.

15 A.2d 402

Appeal No. 225, April term, 1940, from judgment of Court of Common Pleas, Allegheny County, No. 2734, October term, 1938; Ralph H. Smith, Judge.

Proceeding under the Workmen's Compensation Act by Jennie Ceccato, claimant, in behalf of herself and two minor children, for death of her husband, John Ceccato, deceased employee, opposed by the Union Collieries Company, employer. From a judgment affirming a decision of the Workmen's Compensation Board awarding compensation, the employer appeals.

Judgment modified and, as modified, affirmed.

Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES, and HIRT, JJ.

Edward J. I. Gannon and Hazlett, Gannon & Walter, all of Pittsburgh, for appellant.

Murray J. Jordan and Fred J. Jordan, both of Pittsburgh, for appellee.

CUNNINGFIAM, Judge.

This case was previously before this court in 137 Pa.Super. 174, 8 A.2d 422. As there indicated, the broad question involved was whether there was competent evidence to support the finding of the compensation authorities that the death of claimant's husband, from streptococcic lymphangitis of the right leg, was attributable to an accidental injury received while working alone, twelve days previously, repairing a pump in defendant's mine.

As the decedent was unexpectedly summoned to repair the pump on a Sunday morning when the mine was not in operation, and as he was the only employee in the mine during the three hours required to make the repairs, claimant was unable to submit direct evidence of any accidental injury to her husband during the course of this employment.

It was not disputed that the immediate cause of her husband's death was a streptococcic infection which originated in his right knee. Her theory was that while working on the pump he accidentally struck his knee against a steel frame around it, causing a bruise and slight abrasion which furnished the port of entry for the germs. The facts preceding decedent's entrance into the mine and following his emergence therefrom and the circumstances under which he made certain declarations to fellow employees, a neighbor, his wife and the physicians, are detailed in our former opinion. We there stated three propositions of law are involved in this case: (1) Whether any of the declarations of the decedent, received by the referee over the objections of counsel for the employer, were admissible as part of the res gestae; (2) whether, excluding all proof of statements by the deceased relative to the manner in which he injured his knee, the record contains sufficient circumstantial evidence to support a finding that he suffered an "injury by an accident in the course of his employment" that Sunday morning;

(3) if so, does the medical testimony sufficiently show his death resulted from the injury?

As the court below had affirmed the referee and board without giving us the benefit of a discussion of any of these issues, merely remarking that "the record discloses sufficient competent testimony to support the findings," we deemed it proper to remit the record to that court so that it might, in the first instance, pass upon the legal issues involved. Upon the present appeal we have before us an able and thorough discussion of these issues in an opinion by Smith, J., filed November 27, 1939. In it the conclusion is reached that the employer's appeal to the common pleas should be dismissed. From the judgment on the award in favor of claimant and decedent's minor children the present appeal was taken by the defendant company.

Upon the first issue—the admissibility of the declarations made by decedent after coming out of the mine—the statements are thus correctly summarized in the opinion of the court below: "1. Complaint to Conti, his father-in-law, the first man with whom he had conversation after emergence from the mine, of an injury received in the mine while working on the pump. 2. Complaint to Lewis, who saw the injury while they were both under the shower, and to whom the explanation was made that the injury had been received while working on the pump. 3. Explanation made to Mrs. Granish, who saw him limping, had exhibited to her the injury, and heard from Ceccato the explanation that he had been injured in the mine. 4. Explanation

15 A.2d 403

to his wife, who saw him return from work limping, had exhibited to her the bruises, and heard from Ceccato...