H. C. Lallier Construction & Engineering Co. v. Industrial Com'n

• Decision Date: 12 December 1932
• Docket Number: 13163.
• Parties: H. C. LALLIER CONSTRUCTION & ENGINEERING CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Colorado Supreme Court

17 P.2d 532

91 Colo. 593

H. C. LALLIER CONSTRUCTION & ENGINEERING CO. et al. v. INDUSTRIAL COMMISSION et al.

No. 13163.

Supreme Court of Colorado, En Banc.

December 12, 1932

Error to District Court, City and County of Denver; Hon. Charles C Sackmann, Judge.

Proceeding under the Workmen's Compensation Act by Nellie Beaman to recover compensation for the death of her husband, Milton B Beaman, employee, opposed by the H. C. Lallier Construction &amp Engineering Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. An award of the Industrial Commission was affirmed by the District Court, and employer and insurance carrier bring error.

Reversed and remanded.

Edgar McComb and Milton D. Green, both of Denver, for plaintiffs in error.

Clarence L. Ireland, Atty. Gen., Arthur L. Olson Asst. Atty. Gen., and A. M. Kime, of Englewood, for defendants in error.

MOORE J.

The district court affirmed an award of the Industrial Commission allowing compensation in the sum of $3,037.50 to Mrs. Nellie Beaman for the death of her husband claimed to have resulted from an accident arising out of and in the course of his employment. Plaintiffs in error, the employer and the insurance carrier, here seek a reversal contending that the award was based solely upon hearsay testimony.

The record discloses that decedent, Milton B. Beaman, husband of claimant, had worked for the H. C. Lallier Construction & Engineering Company for some time prior to December 12, 1931. On that day he put in a full day's work at the company's plant on West Colfax avenue. He stopped work at 4:30 p. m. and upon his return home between 5 and 6, he told his wife, 'I don't want no supper.' 'I came near getting killed today.' 'A beam fell; we was putting up a beam and it slipped and fell and struck me, and I don't want no supper.' (Counsel have consistently and continuously objected to this testimony on the ground that it is hearsay.) The next day decedent was removed to the hospital where he was operated upon for a ruptured appendix and died on December 15th. The undertaker testified that, when preparing the body for burial, he noticed a blue spot on the abdomen about three and one-half inches by ten inches long but did not know what caused this mark. The hospital report contained this statement: 'Onset while at work December 12, felt a sharp stabbing pain in right side of the abdomen. This was experienced while erecting a heavy beam. He thought he injured himself at this time.' The 'proof of death' certificate filed with the commission states that the remote cause of death was 'ruptured appendix with a personal history from the patient stating a traumatic injury on Saturday Before taking sick on Sunday morning.' From the foregoing, it clearly appears that, except for the statement made by the decedent to his wife and to the doctor as to the cause of his injuries, the record is entirely void of any evidence showing or tending to show when, if at all, and how deceased was injured.

The employer and the insurance carrier introuced the following testimony: Frank Overton, the plant superintendent, stated that decedent was in his employ and was working under his supervision; that they (himself, Jackson, Lallier, Norby, and decedent) were making an arch for the roof and putting up a jim-pole; that 'while we were setting up a jim-pole which had three guy-wires on it, and when we got it straight up,--to get it up Mr. Beaman was using about a five-foot bar and he was sliding it along the concrete and I was lifting it, after we got it set up one of the boys let loose of the rope and it fell over onto the wall of the building.' 'He (Beaman) was to my right and the pole fell to my left'; that the slipping or falling of the pole did not in any way affect Mr. Beaman; that he was in a position to observe decedent at all times; that he saw no accident that day and none was reported to him by Beaman; that decedent worked until 4:30 p. m., cranked his car, and went home.

Norby testified that he was working with Beaman all day; that he did not see an accident and heard no complaint made; that when the jim-pole slipped 'Overton was at the bottom of it, he (decedent) was on one guy line along with Mr. Overton'; that he could not say whether deceased and hold of the pole when it slipped because 'I was busy with my end of the work.'

Frank Jackson testified as follows:

'A. We was putting up a jim-pole.

'Q. That is at the plant on the Golden Road? A. Yes.

'Q. Was Mr. Beaman working with you on that job? A. He was.

'Q. Were you in position to observe him and see what he was doing all that day, Saturday? A. I was.

'Q. Did you observe any accidents or anything happening to him? A. No, sir.

'Q. Did he make any complaint about being hurt? A. None whatever.

'Q. When this jim-pole slipped, were you there and did you see it? A. I was on one of the guy-wires.

'Q. Did you observe Mr. Beaman at the time that slipped? A. I did.

'Q. Did anything strike him or anything touch him at that time? A. It did not.

'Q. Did anything touch or affect him in any way? A. It did not.

'Q. He was not hurt at that time? A. No, sir.

'Q. He worked a full day and quit at 4:30? A. Yes.'

The foregoing summarizes all of the evidence in connection with decedent's claimed injury.

Notwithstanding the positive testimony of Overton, Norby, and Jackson to the contrary, it may be that deceased received an injury when the 'jim-pole' slipped and that his statements to his wife later that afternoon were a recitation of the true facts. However, the burden was upon claimant to show by sufficient, substantial, and admissible evidence that an accident occurred; that it arose out of and in the course of employment of decedent and resulted in his death. Claimant contends that this burden in sustained by her husband's statements to her; that such are admissible as part of the res gestae; and that Industrial Commission v Diveley, 88 Colo. 190, 294 P. 532, is here controlling and conclusive. In the Diveley Case, it appeared that decedent was a night watchman for the Western Pottery Company; that he was ordered to clean the boiler used at the plant; that in order to do this it was necessary for him to climb up about ten feet on a ladder to remove the manhead, which weighed approximately one hundred pounds, carry it down the ladder to the floor, and then carry it up again to replace it after he had finished the cleaning. Claimant testified that about 8 o'clock, her husband called her on the...