Froman v. Banquet Barbecue, Inc.

• Decision Date: 04 April 1938
• Docket Number: No. 17.,17.
• Citation: 284 Mich. 44,278 N.W. 758
• Parties: FROMAN v. BANQUET BARBECUE, Inc., et al.
• Court: Michigan Supreme Court

284 Mich. 44

278 N.W. 758

FROMAN

v.BANQUET BARBECUE, Inc., et al.

No. 17.

Supreme Court of Michigan.

April 4, 1938.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Veronica Froman, guardian of Louise Veronica Haywood, minor, claimant, for the death of Margaret Froman Hayward, the minor's mother, opposed by Banquet Barbecue, Inc., and the Hartford Accident & Indemnity Company, insurer. From an award of the Department of Labor and Industry granting compensation, the employer and insurer appeal.

Affirmed.

Argued before the Entire Bench.

Clifford A. Mitts, Jr., of Grand Rapids, for appellants.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellee.

SHARPE, Justice.

Margaret Froman Haywood, a young woman 19 years old and the mother of Louise Veronica Haywood, a minor under the age of 16 years, was employed by defendant Banquet Barbecue, Inc., as a waitress. She died May 15, 1936, from peritonitis and pneumonia following an operation on May 9, 1936.

Plaintiff duly filed a claim for compensation upon the ground that on April 20, 1936, deceased suffered an accidental injury which resulted in her death. The commission found that on April 20, 1936, deceased, while cleaning the coffee urn at defendant's restaurant, slipped from a stool and struck her side against a tray or table on which the urn stood, and that she died as a result of an accidental injury arising out of and in the course of her employment. The commission further found that plaintiff, Louise Veronica Haywood, was totally dependent upon deceased, and awarded her compensation of $7 a week for 300 weeks, medical and hospital bills, and $200 last illness and funeral expenses.

Defendants appeal and claim that the record contains no evidence that deceased died as a result of an accidental injury received in the course of her employment; that plaintiff was not totally dependent upon deceased; and that the commission erred in awarding medical and hospital expenses in excess of $200.

We first consider whether there was any evidence to sustain the commission's finding that deceased suffered an accidental injury arising out of and in the course of her employment.

The following facts appear from the record: When deceased went to work April 9, 1936, she appeared to be in good health. Her regular working hours were from 5 o'clock in the evening until the restaurant closed, which was around 2 o'clock in the morning. It was her regular duty to clean the coffee urn before closing time. This was customarily done between 1:30 and 2 o'clock in the morning, and on the day of the alleged accident deceased cleaned the urn some time between 1:30 and 1:45. The coffee urn set on a standard made for that purpose which is about three and a half feet high and four and a half or five feet long. The top of the standard or table is metal and the corners are pointed and sharp. Cleaning consists of taking the strainer out and washing down the inside of the coffee urn; and, because of its height, it is customary for the girls to stand on a stool. Deceased was a short girl, and stood on a stool about two and a half feet high while doing this work.

There were no eyewitnesses to the alleged accident. Thelma Bouck, a fellow employee, testified:

‘Q. You saw her (Mrs. Haywood) clean the coffee urn? A. Yes, sir.

‘Q. And she didn't start until after 1:30, did she? A. Between one thirty and two o'clock. It usually took me from 10 to 15 minutes to clean it. I imagine I am a little faster worker than she was, or maybe a little slower; I judge she took about 10, 15 minutes, put that down.

‘After she cleaned the coffee urn she told me about hurting herself * * *

‘Q. It was right after the coffee urn was cleaned she told you she hurt herself? A. Yes, sir. * * * A. She said, ‘Thelma, I have hurt myself, I fell and hurt myself on the coffee urn.’

‘Q. Did she say what she was doing when she fell? A. Cleaning the coffee urn. When she said that she put her right hand on her right side.’

Mr. Crowley saw the deceased at 1:45; he testified: ‘I was there about quarter to two. As I came in there I saw Mrs. Haywood. She was sitting on an end stool, holding her right side, with her hand over it, pressed tightly. There were tears coming into her eyes, though she wasn't crying to great extreme.’

Deceased arrived home shortly after 2 o'clock. Her mother testified as follows: ‘A. I found a spot about like that raised up under the skin where she was black and blue.

‘Q. You say that would be two and a half inches across there? A. About like that.

‘Q. On what side? A. Right there (indicating)

‘Q. Let us show that on the record. On the right side. A. Well, yes, right here.’

Defendants contend that the deceased's statement to Thelma Bouck is hearsay, while the plaintiff contends that it is admissible as part of the res gestae.

In the early compensation case of Reck v. Whittlesberger, 181 Mich. 463, 148 N.W. 247, 249, Ann.Cas.1916C, 771, this court held: ‘The statements made by an injured man as to his bodily or mental feelings are admissible, but those made as to the cause of his illness are not to be received in evidence. The rule applies to statements made by a deceased workman to a fellow servant as to the cause of his injury.’

However, if the statement is a part of the res gestae, it is competent and admissible. The test was laid down in Rogers v. Saginaw-Bay City R. Co., 187 Mich. 490, 153 N.W. 784, 785: ‘The exception is based upon the fact that such exclamations, by virture of their origin, have a peculiar trustworthiness. It is well established by the authorities that the only conditions upon which such statements will be allowed in evidence are (1) that there is a startling occasion, startling enough to produce nervous excitement, and render the utterance spontaneous and unreflecting; (2) that the statement must have been made before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstances of the occurrence preceding it. 3 Wigmore on Evidence, § 1750 et seq.’

This court has applied this rule many times. See Stone v. Sinclair Refining Co., 225 Mich. 344, 196 N.W. 339;Bunker v. Motor Wheel Corp., 231 Mich. 334, 204 N.W. 110;Rife v. Gafill Oil Co., 235 Mich. 15, 209 N.W. 172; Sanborn v. Income Guaranty Co., 244 Mich. 99, 221 N.W. 162;Ayling v. City of Detroit, 275 Mich. 338, 266 N.W. 372.

The commission may draw legitimate inferences from established facts. Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 170 N.W. 15;Weenink v. Allen Elec. & Equip. Co., 276 Mich. 561, 268 N.W 739. It may have reasonably inferred that the statement to Thelma Bouck was made within, at most, 10 or 15 minutes after the accident; and there is some evidence from which the commission could have inferred that deceased was in pain when this statement was made. The declaration was apparently spontaneous and so connected with the accident as to be a part of the res gestae. See Bunker v. Motor Wheel Corp., 231 Mich. 334, 204 N.W. 110. Moreover, this statement does not stand alone as the only evidence of the accident. The fact that when deceased left home for work she was cheerful and in good health, the customary and necessary practice of standing on a stool to clean the coffee urn, the sharp edge of the table on which the urn sets, the condition in which Mr. Crowley found deceased within 5 or 10 minutes after the accident and before she left the restaurant, the swollen black and blue spot which appeared on deceased's side where she claimed to have been injured, are all evidence which bore out and substantiated deceased's statement.

Defendants next contend that there is no evidence that the accidental injury was the proximate cause of Margaret Haywood's death. On this point the commission found: ‘In the testimony of Dr. Raymond Scully it was stated that the acute appendicitis was aggravated, or produced, by the injury to the deceased's side. The immediate death was caused by peritonitis and pneumonia as the result of the operation. Dr. Scully performed the operation and, from an examination of the cecum and the appendix removed, it was his opinion that the injury was the cause of the deceased's appendicitis. He stated that it is possible for acute appendicitis to develop with the traumatic...