Lambing v. Consolidation Coal Co., 3003

• Court: Superior Court of Pennsylvania
• Writing for the Court: ROSS, J.
• Citation: 161 Pa.Super. 346,54 A.2d 291
• Decision Date: 17 July 1947
• Docket Number: 3003
• Parties: Lambing v. Consolidation Coal Company, Appellant

54 A.2d 291

161 Pa.Super. 346

Lambing v. Consolidation Coal Company, Appellant

No. 3003

Superior Court of Pennsylvania

July 17, 1947

Argued April 16, 1947.

Appeal, No. 138, April T., 1947, from judgment of C. C Allegheny Co., 1946, No. A. 583, in case of Carrie Lambing widow of Glenn Lambing, deceased, v. Consolidation Coal Company.

Appeal by employer from award by Workmen's Compensation Board.

Appealdismissed and judgment entered for claimant, opinion by Harkins, J Defendant appealed.

Edw. J. I. Gannon, with him Hazlett, Gannon & Walter, for appellant.

Samuel Krimsly, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

ROSS, J.

In this workmen's compensation case, the widow of Glenn Lambing, a loading machine operator employed by the defendant in its mine, filed a claim petition on behalf of herself and four minor children, averring that the decedent on July 5, 1944, while in the course of his employment, was injured by the fall of a mine timber, receiving injuries which resulted in his death on October 19, 1944. An answer was filed denying that Lambing sustained an accidental injury in the course of his employment and that his death resulted therefrom, and also raising the question of notice. After hearing, the referee made an award which was upheld by the board and the court below and this appeal was taken by the defendant employer.

The referee, affirmed by the board, found as a fact, inter alia: "Fourth: On July 5, 1944, the decedent was bruised on the right shoulder with a timber in the course of his regular employment with the defendant and, as a result thereof, this wound became infected and the decedent came to his death on October 19, 1944, from staphylococcic septicemia and acute pulmonary edema which, in the opinion of your Referee, was caused by the bruise received in the accidental occurrence of July 5, 1944." The first question involved in this appeal is whether this finding of fact is supported by competent evidence, and unless it can be said that the findings are not supported by substantial competent evidence, they cannot be disturbed. Petrovan v. Rockhill Coal & Iron Co., 130 Pa.Super. 58, 196 A. 516; Barkus v. Thornton-Fuller Co., 157 Pa.Super. 239, 42 A.2d 320. As the factfinding body has found in her favor, we must review the evidence in the light most favorable to the claimant (Hockenberry v. State Workmen's Insurance Fund, 133 Pa.Super. 249, 2 A.2d 536), and she is to be given the benefit of inferences reasonably deducible therefrom. Paulin v. Williams & Co., Inc., et al., 122 Pa.Super. 462, 186 A. 415, affirmed 327 Pa. 579, 195 A. 40.

The only medical witness in the case, Dr. H. S.D. Mock, who had attended the decedent, testified, inter alia: "Q. And what was the cause of death? A. The cause of death was staphylococcic septicemia and empyema. In other words, septicemia is a germ in the blood stream and empyema is multiple pus, pus in the blood accompanied by pus all through the body. . . . Q. Taking into consideration, Doctor, the history that you received from the claimant and the findings on your physical examination and the eventual cause of death, are you able to state whether or not there is any connection? A. In my opinion, the wound on his shoulder became infected with this staphylococcic germ, which spread through his body and was the cause of his death. Q. Doctor, how does one contract such a disease as staphylococcic germ? A. It comes through a break in the skin. Q. Is that the only way it comes or can be contracted? A. Yes. Q. Are you able in your professional opinion to say where this germ had its portal of entry? A. The right shoulder. Q. At the point of injury, Doctor? A. Yes, sir." This testimony is sufficient to establish the causal connection between the bruise on Lambing's shoulder and his death. However, a more difficult problem is presented by defendant's contention that there is not sufficient evidence to support the referee and board's finding that "the decedent was bruised on the right shoulder with a timber in the course of his regular employment with the defendant". The decedent was working alone, there were no eye witnesses to the accident and an accident cannot be inferred merely from an injury. There must be some evidence, direct or circumstantial, in the latter instance, clearly and logically indicating it. Adamchick v. Wyoming Valley Collieries Co., 332 Pa. 401, 3 A.2d 377.

The testimony shows that the decedent left his home at 9:30 P.M. to start his work in defendant's mine at 10 o'clock on the night of July 5; that he operated a loading machine in room No. 6; that sometime before 5 o'clock the next morning a 12-foot 200-pound roof timber in room No. 6 fell to the ground; that a witness, Crawford, had been sent at 5 o'clock to replace the timber, and the decedent was then working in room No. 4, having "cleaned up" room No. 6; that at 6:30 in the morning Crawford and the decedent rode to the surface on the same man trip and left the defendant's mine together. Crawford testified that the decedent stated to him, "He said his shoulder was bothering him. He said, 'You know that timber you replaced, Crawford?' I said, 'Yes'. He said, 'That is the timber that hit me on the shoulder'"; and referring to Lambing, "He unbuttoned his shirt -- he had light underwear on and his shirt and coat, and he pulled his shirt back and showed me the bruise he had on his shoulder. Q. Which shoulder was it on? A. The right shoulder."

The widow testified that when the decedent left the home on the night of July 5, he was in "perfect" condition, that she saw his back and shoulders and there were no bruises or marks on them; that when he returned to his home about 7 o'clock the next morning, he said, "I got hit last night", and that "When he took his underwear off to bathe, his shoulder was cut and bruised, you know, skinned, just like something had hit him, you know. Q. What shoulder was it? A. Right shoulder." and "He told me timber had got knocked out and come down and struck him on the shoulder. Q. Did he say where this occurred? A. No, where he was working, but I don't know just where he was working here. Q. In the mine? A. It was in the mines where he was working." She testified that she treated the bruise with mercurochrome and she was corroborated in this by a neighbor woman, Mrs. Oswalt, who also saw the bruise and the application of mercurochrome.

Aside from the hearsay evidence, which we will discuss later, it is our opinion that there is sufficient direct and circumstantial evidence to support the finding that the decedent was injured during the course of his employment. In our opinion this case is not distinguishable from Ceccato v. Union Collieries Co., 141 Pa.Super. 440, 15 A.2d 401. In that case, before decedent went to work in the morning in question he was, and had been, a man apparently in good health and free from any knee injury. His home was only a half mile from the mine entrance. When he came out of the mine, after working three hours alone, he showed a witness a "bump" on the side of his right knee, and the marks of an injury were shown to other witnesses, including his wife. We held that the facts "constitute a natural sequence of events clearly and logically indicating decedent accidentally injured his knee while in the mine. All of them are consistent with that inference and exclude with reasonable certainty the possibility that he received the injury some other place."

In Heite v. Vare Construction Co., 129 Pa.Super. 204, 195 A. 437, relied upon by appellant, there was no natural connection between the employee's work and the accident, such as is present in this case. In that case, the employee apparently was injured by a board which fell on his foot and injured his toe. No one testified to the presence of such a board on the premises where he was employed, and there was no apparent reason or purpose for its being there. He was a watchman and there was nothing to show that he had anything to do with the handling of boards. This court, in holding that the circumstantial evidence was not sufficient to prove an accidental injury, stated: "The injury to the foot was not something naturally connected with his employment and could just as probably have occurred anywhere else as on his employer's premises."

In the instant case, it is in evidence that the decedent was unbruised when he went to work, that a roof timber had fallen in the room where he had been working that night, and that he had the shoulder bruise when he left the mine the next morning. Under this evidence we believe that it is reasonable to conclude that there was a natural connection between his work and the accident and that the circumstances would appear to be such as to satisfy "reasonable and well balanced minds that an accident did occur". Piotrowski v. Dey Co., 123 Pa.Super. 29, 185 A. 862. The fact-finding body has a right to use the conclusions and tests of everyday experience and draw the inferences which reasonable men would thus draw from similar facts (Neely v. Provident Life & Acc. Ins. Co., 322 Pa. 417, 185 A 784), and these all point to decedent's injury while in the course of his employment in defendant's mine. Cf. Broad Street Trust Co. v. Heyl Brothers, 128 Pa.Super. 65, 193 A. 397; McCauley v. Imperial Woolen Co., 261 Pa. 312, 104 A. 617; Nesbit v. Vandervort & Curry, 128 Pa.Super....