Cody v. S. K. F. Industries, Inc.

• Decision Date: 25 May 1972
• Citation: 447 Pa. 558,291 A.2d 772
• Parties: Clara CODY, widow of Carl Cody, Jr., Deceased, Claimant, v. S.K.F. INDUSTRIES, INC., Appellant. Appeal of LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier.
• Court: Pennsylvania Supreme Court

Page 772

291 A.2d 772

447 Pa. 558

Clara CODY, widow of Carl Cody, Jr., Deceased, Claimant, v. S.K.F. INDUSTRIES, INC., Appellant.

Appeal of LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier.

Supreme Court of Pennsylvania.

May 25, 1972.

Rehearing Denied July 5, 1972.

Roger B. Wood, Joseph R. Thompson, Philadelphia, for appellant.

Stalney P. Stein, Philadelphia, for appellee.

Before JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

EAGEN Justice.

For ten years prior to his death, Carl Cody, Jr., was an employee of S.K.F. Industries, Inc. His widow, alleging his death was the result of a compensable accident suffered in the course of his employment, filed a timely claim for Workmen's Compensation on behalf of herself and their five children under the Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. Following an extended hearing, the referee entered an adjudication including findings of fact, conclusions of law and an award of compensation. Subsequently, the Workmen's Compensation Board affirmed the referee's adjudication and the award of compensation. Successive appeals to the Court of Common Pleas and the Commonwealth Court 2 Pa.Cmwlth. 19, 276 A.2d 356 by S.K.F. and its insurance carrier proved unsuccessful. We granted allocatur to determine if the record includes sufficient competent evidence to sustain a finding that the decedent's death was caused by a compensable accident suffered in the course of his employment. We rule it does, nd now affirm the Commonwealth Court's unanimous order affirming the compensation award.

The testimony before the referee included the following:

Carl Cody's primary duty in his employment with S.K.F. was chauffeuring its executives. He enjoyed general good health and a consistently good work record. On March 10, 1966, he checked out of work two hours early complaining of being 'sick' and was given transportation part-way home by a fellow employee and took a taxicab the remaining distance. Upon arriving home, Cody complained of a severe headache and informed his wife that at work, after driving a company automobile into the executive garage, he was struck on the head and knocked to the ground by an overhead garage door. He reported for work on March 11th and 12th, but the headache did not abate and on the evening of March 12th Cody was confined to bed suffering from chills and general pain. On March 13th, the family physician was consulted to whom Cody described how on March 10th he had been hit on the head by the overhead garage door. On March 15th Cody's condition worsened and the physician ordered him transferred to a hospital. At this time, Cody was found to be suffering from high temperatures, severe headaches, periods of delirium and ptosis of the eyelids. Cody remained in the hospital until March 27th, but was re-admitted on March 31st, when he underwent surgery to alleviate an infection in the subdural region of the brain. He died on April 10th.

To establish the causal connection between the alleged head injury and the ultimate death, the claimant produced a Dr Theodore Kushner, a specialist in neurology and psychiatry. Dr. Kushner testified that in his opinion trauma to the head caused a blood clot, or a subdural hematoma of the tissue, and this became infected, and the subdural collection of blood through the infection turned into a collection of pus, or a subdural empyema, and this was the cause of death. The doctor stated that an injury to the head was the only thing which could have caused the subdural empyema since there was no brain abscess or infection in the paranasal sinus or in the middle ear. He totally discounted the theory that the infection was blood borne since the blood supply to the subdural space is quite limited and there was no evidence of an infection in the lungs, kidneys, spleen or liver, thus the infection had to be a local condition and a head injury was the only possible cause.

Claimant also called Dr. Morris Segal, a surgeon with a background in head injury treatment, who testifed that in his opinion the deceased had sustained a subdural hematoma, that eventually the hematoma became infected, and turned into an empyema and this was the cause of death. He stated that a trauma to the head was the only way the subdural hematoma could have developed.

The records of the hospital which included a history of the decedent's alleged accident were also received in evidence over objection.

To rebut the testimony of the experts called by the claimant, appellants called Dr. Melvin N. Wood, the neurosurgeon who operated on the decedent and cared for him during his second admission to the hospital. Dr. Wood testified that the cause of death was a subdural empyema, but he was not able to say with medical certainty what caused the condition, although he noted there was tenderness on an area of the skull, and he stated that it was possible, but not probable, that a head trauma could have precipitated Mr. Cody's death. Appellants also called Dr. Zung Pah Woo, a pathologist who did a large part of the autopsy protocol. Dr. Woo was also unable to say with medical certainty what caused the empyema, but could not discount the fact that a trauma could have caused the condition.

On the basis of this evidence, the referee granted the contested aware to Mrs. Cody.

From the foregoing, it can readily be seen the finding of the compensation referee and the board that Cody suffered a compensable accident was necessarily bottomed on the testimony of Cody's widow and the Cody family physician as to what Cody related to them. The appellants contend this evidence was incompetent as hearsay and was erroneously considered by the fact finders over their objection.

We agree with the appellants that the testimony of the claimant-widow and the family physician as to the statements made to them by the decedent concerning the accident was not admissible as res gestae.

The law as it relates to the res gestae or spontaneous exclamation exception to the hearsay rule can be briefly summarized as follows. A res gestae declaration is a spontaneous utterance by an individual whose mind has suddenly been made subject to an overpowering emotion caused by some unexpected and shocking act or occurrence. Allen v. Mack, 345 Pa. 407, 28 A.2d 783 (1942). The utterance is generated by, or springs out of the act, and the words are in a sense part of the act itself. Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952). Hence, the exciting events actually speak through the 'verbal acts' of the declarant. The words, which are in the nature of this emotional impulsive outburst, must be in the same continuous transaction with the acts, thus they are in a sense integrated into the acts. Weshalek v. Weshalek, 379 Pa. 544, 109 A.2d 302 (1954); Commonwealth v. Dessus, 214 Pa.Super. 347, 257 A.2d 867 (1969); Wilf v. Philadelphia Modeling and Charm School, Inc., 205 Pa.Suepr. 196, 208 A.2d 294 (1965); Smith v. State, Workmen's Insurance Fund, 140 Pa.Super. 602, 14 A.2d 554 (1940). The utterance must be near in time to the occurrence ¹ and to insure trustworthiness it normally must be spoken to one of the first persons seen by the declarant after the act. Ceccato v. Union Collieries, Co., 141 Pa.Super. 440, 15 A.2d 401 (1940); Co., 141 Pa.Super. 440, 15 Co., 140 Pa.Super. 245, 14 A.2d 201 (1940); Heite v. Vare Construction Co., 129 Pa.Super. 204, 195 A. 437 (1937). The basis for the admission of the utterance is its spontaneity, thus all utterances which do not display the mandated instinctive naturalness must be excluded for fear that the words will emanate in whole or in part from the declarant's reflective faculties. The declaration must be spoken under conditions which insure that it is not the result of premediation, consideration or design, and it cannot be in the form of a narration or attempted explanation of past events, thus the process of the intellect can not have had an opportunity to be set in motion. Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966); Weshalek v. Weshalek, supra; Haas v. Kasnot, supra. The exciting event, closely followed by the spontaneous exclamation emanating from the event, insures the truthfulness of the declaration, thus allowing for its admission into evidence.

Under these principles we are compelled to conclude that the statements made by the decedent concerning the accident to his wife were not within the res gestae exception. We do not view these as spontaneous utterances springing out of the act. Initially, we note that the words were not in 'the same continuous transaction' with the act of being struck over the head with the garage door. There was a distinct break in the continuity during which time the decedent had seen a number of other people, to whom he did not mention anything about the accident. Moreover, during this time the requisite spontaneity vanished as the decedent's reflective faculties resumed functioning. Thus, the statements were the result of consideration, and must be viewed as a narration or explanation of the past event. Consequently, we conclude that the statements to the wife were hearsay and not competent evidence to support the finding that decedent suffered a compensable accident.

Next, we turn our attention to the testimony of the family physician, Dr. Cannon. The relevant facts pertaining to his testimony are: Dr. Cannon was called to administer treatment to the decedent at his home three days after the accident. Over objection of appellants' counsel, the Doctor testified that decedent had explained to him that on Thursday preceding the examination the decedent was struck over the head with a garage door. Based on the law before stated, we likewise rule this testimony was not admissible as res gestae. The foundation of res gestae rests on spontaneity, the statement must spring out from the act, and as we view the statements to the Doctor, the requisite spontaneity is clearly lacking. The...