Ideal Bakery v. Schryver

• Decision Date: 12 May 1931
• Docket Number: 1695
• Citation: 43 Wyo. 108,299 P. 284
• Parties: IDEAL BAKERY v. SCHRYVER
• Court: Wyoming Supreme Court

299 P. 284

43 Wyo. 108

IDEAL BAKERY v. SCHRYVER

No. 1695

Supreme Court of Wyoming

May 12, 1931

ERROR to District Court, Carbon County; VOLNEY J. TIDBALL, Judge.

Proceedings under the Workmen's Compensation Law of Alida Schryver on behalf of the dependents of H. H. Schryver, deceased employee, opposed by the Ideal Bakery, a copartnership employer. To review an award made by the District Court, the employer brings error.

Affirmed.

For the plaintiff in error there was a brief and oral argument by D R. Higley, of Rawlins, Wyoming.

The claimant failed to establish by competent evidence an injury occurring during the course of, and arising out of the occupation; the cause of the injury was conjectural. The burden of proving that his disability is the result of the accident is upon the injured workman. Standard Oil Co. v. Sullivan, 33 Wyo. 224. To be accidental, or the result of an accident, a definite time, place and cause must be shown. Co. v. Industrial Board, (Ill.) 120 N.E. 251; Boorde v. Comm., (Ill.) 141 N.E. 400; Hill v. Blair, (Mich.) 148 N.W. 245; Liondale Works v. Riker, (N. J.) 89 A. 931 and cases cited. An award based on hearsay evidence cannot stand. Valentine v. Weaver, (Ky.) 228 S.W. 1036; Carroll v. Ice Co., (N. Y.) 113 N.E. 507; Co. v. Com., (Utah) 178 P. 63; Belcher v. Co., (N. Y.) 120 N.E. 736; Chicago Co. v. Comm., (Ill.) 126 N.E. 616; Englebretson v. Ind. Com., (Cal.) 151 P. 421. Statements made by the co-partner of the injured workman, were unsupported by evidence of the real cause of the injury, and as shown by the evidence were collusive. 4327 C. S. Employers report of accident contained no admission sufficient to establish an injury contemplated by the Compensation Act. Reck v. Whittlesberger, (Mich.) 148 N.W. 247; Williams Shoe Co. v. Brooks, 9 Wyo. 433; David v. Whitehead, 13 Wyo. 206. The injury complained of is not within the provisions of the Compensation Act. Laws 1929, Ch. 46. The construction contended for by claimant is in contravention of Art. III, Sec. 34 of the State Constitution and the 14th Amendment to the Federal Const. Glatzl v. Stumpp, (N. Y.) 114 N.E. 1053; Leslie v. Casper, (Wyo.) 288 P. 15. The court erred in denying employer's motion for a directed verdict. The judgment is not sustained by sufficient evidence, and is contrary to law.

For defendant in error there was a brief and oral argument by John W. Henderson, of Greeley, Colorado.

The claim for compensation was admitted in the reports filed by the employer. There was no evidence of culpable negligence. Pleadings, superseded by amended pleadings are admitted against the pleader as evidence of admissions against interest. Page v. Co., (Okla.) 87 P. 851; Lumber Co. v. Lager, (S. D.) 128 N.W. 698; Sayre v. Mahney, (Ore.) 56 P. 526; Burris v. Anderson, (Colo.) 62 P. 362; Hege Co. v. Tomkins, et al., (Ind.) 121 N.E. 677. An employer's report of injury in a statement against interest may be considered as an admission. Oil Co. v. Stanley, (Okla.) 217 P. 377; Reck v. Whittlesberger, (Mich.) 148 N.W. 247. A material fact at issue may be established by hearsay evidence where admitted without objection. Hege Co. v. Tompkins, supra. Ins. Co. v. Lyons, 98 N.E. 824. The widow's evidence was received by consent and objection thereto cannot now be urged. Schmidt v. Bank, 29 Wyo. 260; Bank v. Richards, (Wyo.) 246 P. 29. The findings of the trial court will not be disturbed, where based on conflicting evidence. Standard Oil Co. v. Sullivan, 33 Wyo. 223; Kittleson v. Hibler, 37 Wyo. 326. The record supports the findings made by the trial court. Fogarty v. National Biscuit Co., (N. Y.) 116 N.E. 346; Connelly v. Co., (N. Y.) 148 N.E. 366. There was no collusion shown within the meaning of that term in law. 11 C. J. 1220. The hazardous duty performed by an employee rather than the occupation of the employee governs the right to recover. Leslie v. City of Casper, (Wyo.) 288 P. 15. In re Larsen, (N. Y.) 112 N.E. 725; Dose v. Co., 117 N.E. 616. Great latitude is allowed in the taking of evidence under the Compensation Act. 4327 C. S.

D. L. Higley, in reply.

Hearsay evidence lacks the essential element of satisfactory or legal testimony. Stirling v. Wagner, 4 Wyo. 44. The injury contended for is not within the Compensation Act. Standard Cattle Co. v. Baird, 8 Wyo. 144; McGarvey v. Swan, 17 Wyo. 140; State v. Sherman, 18 Wyo. 169; Cunningham v. Inv. Co., (Mont.) 119 P. 561; Honnold on Workmen's Compensation 333. Where two inferences may be deduced, one authorizing recovery and the other not, neither has any probative force. Hartung v. Union P. R. R. Co., 35 Wyo. 197.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

These proceedings in error were brought by the plaintiff in error Ideal Bakery, hereinafter usually referred to as the "employer", to review an award made by the District Court of Carbon County under the Workmen's Compensation Law of Wyoming, in favor of Alida A. Schryver, his wife, and Dorothy E. Schryver, the minor child of one H. H. Schryver, who died April 16, 1930, at Rawlins, Wyoming.

The plaintiff in error is a co-partnership, wherein Fritz Henderson and A. H. Good are the only persons interested. During the months of March and April, 1930, they were engaged in conducting a bakery business at Rawlins, and Harry H. Schryver, subsequently generally mentioned as the "workman", was employed by them as head pastry man, working nights. He performed his duties in a workroom where machines driven by electric motors were located for making bread and pastry.

In the order of award the trial court found, among other things, that:

"The said H. H. Schryver was injured on or about the 26th day of March, 1930, at Rawlins, Carbon County, Wyoming, while in the employ of the Ideal Bakery; that said injury consisted of a cut on the second finger of his right hand at the first joint, incurred while in the employment of his duties as baker; that said injury resulted in blood poison from which he died on April 16, 1930. Said Ideal Bakery being a bakery kitchen in which power machinery is used."

The claim upon which the award was made was presented by the surviving wife upon behalf of herself and the child of the injured workman. In criticism of the District Court's order in the premises, the employer urges that there was no competent evidence before the court submitted by the wife showing that the injury occurred in the course of the employment of the workman. This contention requires examination of the proofs shown by the record. Briefly, the facts of the case material to be considered in disposing of the contention, are these:

The workman, who had previously been employed by the plaintiff in error, started to work at the bakery again about the 20th of March, 1930. His wife came to Rawlins on the 29th of that month, her husband meeting her at the train and at that time being apparently in good health. On the trial she testified, however, without objection concerning her husband, that:

"He told me Sunday when he laid down to rest after I came Saturday evening that he had cut his finger down at the bakery, but it didn't amount to anything."

The same statement was again elicited on cross-examination by counsel for the employer, as also was her testimony, that while at the hospital Mr. Good asked her husband how his finger was hurt, and the latter responded:

"He didn't remember just the way he did hurt his finger, but he cut his finger down at the bakery, but he said he didn't notice it was cut until he was almost ready to go off shift, and when he washed his hands he noticed his finger was cut."

Schryver continued at his work despite the injury, but on the Wednesday following, April 2nd, according to the wife's testimony--also received without objection:

"He just said he had a boil on his arm, or he thought he was getting a boil on his arm, and I asked him if his finger hurt him and he said, no, it didn't."

He worked that night and the next, but on April 4th, his arm having become very painful, he consulted a physician, who found that there was a laceration of the right middle finger which showed an inflammatory reaction and swelling. The workman's general condition of health gradually grew worse, and on the night of April 5th, he was taken to the local hospital, where he subsequently died of septicemia, or "general blood poisoning." Shortly after the death occurred, the undertaker who took charge asked one of the partners, Mr. Good, what the cause of the death was, and the latter replied: "Blood poison," and "that probably it resulted from infection at the bakery." On the same day at the hospital, Good also told Mrs. Schryver and a relative that "Harry cut his hand at the bakery on a can while he was at work."

Prior to Schryver's death, the partners made an investigation of the accident and one of them went to the hospital to get information on the matter from the workman, this data being gathered for the purpose of making a report under the Workmen's Compensation Law of this state. Thereupon Anderson made and filed an "Employer's Report of Accident" on a printed form furnished by state officials for that purpose. The other partner, Good, looked it over and said it was "all right." In that report, among other statements, appear the following:

"Q. (5) What was the nature of the injury. A. Scratch on finger causing blood poison.

"Q. (6) State to what extent injury disables the workman: Temporary total disability Yes

(Disability which cause loss of time but leaves no permanent defect). Remarks: Mr. Schryver is still at Hospital.

"Q. (7) State the length of time the disability has lasted. A. Since 5th of April.

"Q. (8) Did the accident occur while the workman was engaged in the duties...