Lamkins v. Copper-Clad Malleable Range Corporation

• Decision Date: 03 November 1931
• Docket Number: No. 21707.,21707.
• Parties: LAMKINS v. COPPER-CLAD MALLEABLE RANGE CORPORATION et al.
• Court: Missouri Court of Appeals

42 S.W.2d 941

LAMKINS v. COPPER-CLAD MALLEABLE RANGE CORPORATION et al.

No. 21707.

St. Louis Court of Appeals. Missouri.

November 3, 1931.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Proceeding, under the Workmen's Compensation Law by Lena Lamkins, dependent, for the death of James Lamkins, her husband, claimant, opposed by the Copper-Clad Malleable Range Corporation, employer, and the Maryland Casualty Company, insurer. From a judgment sustaining an award in favor of claimant, the employer and insurer appeal.

Reversed and remanded with directions.

Allen, Moser & Marsalek, of St. Louis, for appellants.

Max Sigoloff and B. Sherman Landau, both of St. Louis, for respondent.

HAID, P. J.

This action is one arising under the Workmen's Compensation Law (Rev. St. 1929, § 3299 et seq.). From a judgment sustaining an award in favor of the claimant, the employer and insurer appeal.

James Lamkins was in the employ of the Copper-Clad Malleable Range Corporation. On August 28, 1929, he was injured, and it is claimed that as a result thereof he died on October 22, 1929, and the claim is in behalf of his widow.

The respondent's first contention is that the record does not contain sufficient competent evidence to show that the injury suffered by the employee arose out of and in the course of his employment.

This contention is partially based upon objections made to certain evidence offered by the claimant, and a consideration of the case would seem to require, therefore, that these objections be first disposed of.

One of the objections is that the narrative statement of an unidentified relative of the deceased appearing in the report of the St. Louis City Hospital was not competent evidence of the facts stated therein. No objection is made to the receipt in evidence of the certified copy of the hospital record in other respects. An examination of the record discloses that when the exhibit was offered in evidence the referee ruled that the objection to the relative's statement was sustained. It is true that in a subsequent statement by the referee he again held that the hearsay statement in the report was not admissible but that in order to have the point passed on by the upper court he requested counsel to make their objection and ask that all hearsay statements be stricken from the record, and thereupon stated that his ruling would be to allow all of the certified copy of the hospital record to be admitted in evidence.

We have no doubt that the purported statement of the relative, contained in this hospital report, was inadmissible; but since it clearly appears from the record that the referee did not consider that statement in support of his finding, its reception in evidence, while erroneous, was harmless error, especially if the other facts in the case support the award of the commission. Marx v. Parks (Mo. App.) 39 S.W.(2d) loc. cit. 574.

The next objection is directed against the report of the accident filed by the employer with the Workmen's Compensation Commission. In offering the document the attorney for the claimant stated that claimant desired to offer in evidence, as admission against interest of the defendant the Copper-Clad Malleable Range Corporation, its report of accident filed with the Missouri Workmen's Compensation Commission on November 2, 1929. The only objection made to the admission in evidence of this document was that it was not competent and not the best evidence.

In this court it is claimed that the report was inadmissible and incompetent as evidence because the document was not made a part or included in the record and there was no proof of its authenticity or genuineness, or that it was the report of the alleged accident made by the employer or any one authorized to act for him.

Counsel cannot thus enlarge an objection upon appeal; they are confined to that urged at the hearing below and the reasons assigned therefor. Coughlin v. Haeussler, 50 Mo. loc. cit. 129; Kehlenbrinck v. City of St. Louis (Mo. Sup.) 232 S. W. loc. cit. 125; Edmondson v. Hotels Statler Co., 306 Mo. loc. cit. 235, 267 S. W. 612; Compton v. Construction Co., 315 Mo. loc. cit. 1089, 287 S. W. 474; State ex rel. v. Diemer, 255 Mo. loc. cit. 347 et seq., 164 S. W. 517; Threadgill v. United Rys. Co., 279 Mo. loc. cit. 476, 214 S. W. 161; Remmers v. Bromschwig (Mo. App.) 18 S.W. (2d) loc. cit. 115.

Section 3332, Revised Statutes 1929, requires every employer in this state, whether he has accepted or rejected the provisions of the act, "shall within ten days after knowledge of an accident resulting in personal injury to an employee, notify the commission thereof," and prescribes a penalty for a failure to do so. It is to be presumed, therefore, that the employer in the instant case did comply with the statute, and that the report of the accident filed in its behalf with the commission, nothing appearing to the contrary, was in compliance with the provisions of the statute mentioned. No effort was made by the employer to deny the authority of those signing the report, to make it, and it was not incumbent upon the claimant to do more in this instance than to offer it as a part of the file of the claim under consideration. It was offered in evidence and was read into the record of the proceedings before the commission.

We think that the offer of the report in this instance is analogous to the offer in evidence of a pleading of a party and admissible and binding in the same way concerning admissions against interest. Dowzelot v. Rawlings, 58 Mo. loc. cit. 77; Anderson v. McPike, 86 Mo. loc. cit. 301; Snyder v. Chicago, S. F. & C. Ry. Co., 112 Mo. loc. cit. 541, 20 S. W. 885; Spurlock v. Mo. Pac. Ry. Co., 125 Mo. loc. cit. 406, 28 S. W. 634; Kirkpatrick v. Metropolitan Street Ry. Co., 211 Mo. loc. cit. 81, 109 S. W. 682; Boothe v. Cheek, 253 Mo. loc. cit. 129, 161 S. W. 791; Craig v. United Rys. Co. (Mo. Sup.) 185 S. W. loc. cit. 207, 14 A. L. R. 17; Prentiss v. Illinois Life Ins. Co. (Mo. Sup.) 225 S. W. loc. cit. 703.

Having disposed of these objections, we now come to the question of whether the finding of the commission was sustained by competent evidence. In considering this question, we must view the evidence in the light most favorable to support the same. DeMoss v. Evens & Howard F. B. Co. (Mo. App.) 37 S.W.(2d) loc. cit. 962, and cases cited.

It was...