Machala v. Ott
| Decision Date | 14 January 1930 |
| Docket Number | (No. 6657) |
| Citation | 108 W.Va. 391 |
| Court | West Virginia Supreme Court |
| Parties | Anna Machala v. Lee Ott, State CompensationCommissioner |
Master and Servant Where Facts Respecting CompensationClaim Are Insufficiently Developed to Determine Merits, Supreme Court of Appeals May Enter Order Requiring Additional Evidence (Code, c. 15P, § 1 et seq.).
Where the facts concerning a claim for compensation, arising under the Workmen's Compensation Act, are not sufficiently developed by evidence to enable the Commissioner or the court to arrive at the real merits of the claim, an order may be entered here requiring the Commissioner to permit claimant to present, or for the Commissioner himself to obtain, additional evidence, if any, properly to develop the case, and if the claim be thereby sustained to ascertain and pay the compensation to which the claimant may be entitled.
(Workmen's Compensation Acts, C. J. § 131, p. 125, N. 68.)
Appeal from Compensation Commission.
Proceeding under the Workmen's Compensation Act by Anna Machala, claimant, for the death of her husband, John Machala. From an order of the State Compensation Commissioner refusing compensation, claimant appeals.
Reversed and remanded, with directions.
John P. Arbenz, for appellant.
Howard B. Lee, Attorney General, R. Dennis Steed, Assistant Attorney General, and Chas. D. Smith, for respondents.
Anna Machala appeals from an order of the State Compensation Commissioner refusing her an award on account of the death of her husband, John Machala, September 21, 1927.
It is claimed that John Machala's death resulted from a blow in the stomach from the end of a long iron stoking bar with which, in the regular course of his employment, he was raking or cleaning the fire under a boiler of the Wheeling Steel Corporation, in the night of September 16, 1927. Nobody saw the alleged accident, and nobody knows anything about it except from decedent's own statements.
Shortly after the time that he said he was injured the shift on which he was working (3:30 p. m. to 11:00 p. m.) was completed and he walked with fellow workmen about a mile and a half to his home. He said nothing to them about having been hurt, nor had he said anything about it to anybody at the mill. His widow testifies that upon his reaching home about 11:30 he drank some water and a glass of milk; that about two hours later he awoke from his sleep very sick, and vomited. Dr. H. F. Zink was called to see him the next morning. Another physician, Dr. C. W. Kirkland, also attended the patient. The widow and each of the physicians testifies that the deceased said that the iron bar with which lie was working at the plant slipped and struck him on the right side of the abdomen. Dr. Zink testified that there was tenderness and discoloration on the abdomen at the point where the patient said he had been struck.
A post mortem examination conducted by the two physicians named and Dr. J. W. Neidermyer the latter a physician in the employ of the Wheeling Steel Corporation disclosed an unnatural condition in the region of the right lobe of the liver. Dr. Zink reported that the examination showed contusion of the liver and pleurisy; that the condition of the liver showed that there had been an injury, and that this condition was sufficient to have caused death. Dr. Kirkland reported a marked traumatic condition of right lobe of liver which could have resulted from just such a blow as decedent had described to him and that said condition was sufficient to have caused death. Dr. Neidermyer reported a small brown stain over sixth or seventh rib as the only evidence of external injury; a boggy right lobe of liver due probably to hemorrhage; pleural exudate over right lung but no other pathology found; gall bladder punctured by undertaker in embalming. It was his opinion that if death was due to external violence, there would have been more signs of external injury.
It will be seen that there is a sharp conflict between the reports of the first two named physicians and that of the company doctor, particularly as to the probable cause of the liver condition. Dr. Neidermyer advances no cause; but his statement that no other pathology was found seems to indicate that in his opinion decedent's death was due alone to the liver condition.
Application for compensation was filed by defendant's widow. The Compensation Commissioner by order of March 7, 1928, rejected the claim and assigned as a reason "not shown that death of employee is the result of an injury received in the course of and resulting from employment." On December 26, 1928, the Commissioner refused to set aside the order of March 7th. On January 22, 1929, petitioner presented her petition and appeal to the Compensation Appeal Board. Pending decision of the case the Appeal Board was abolished by act of the legislature of 1929. Thereafter the appeal wras presented to this Court. Such was a proper procedure. Conley v. Compensation Commissioner, 107 W. Va. 546.
May the testimony of witnesses as to statements made to them by a person since deceased as to the cause of his injury be received in evidence! Under the ordinary rules of evidence this testimony would be excluded as hearsay unless part of the res gestae. Can it be admitted under the letter or spirit of our Workmen's Compensation Statute? Section 44 of that statute reads: '' The commissioner shall not be bound by the usual common law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in such manner as in his judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this act."
In reference to this provision of the statute we said in Poccardi v. Commissioner, 82 W. Va. 497: ...
To continue reading
Request your trial
-
Evans v. State Compensation Director
...evidence, Code, 23-1-15, and further held that under the law laid in the first appeal of the Machala case, Machala v. Ott, State Compensation Commissioner, 108 W.Va. 391, 151 S.E. 313, that: '* * * an award may not be had upon hearsay alone, but that in view of our statutes it was proper to......
-
Hayes v. State Compensation Director
...visible indication of an injury to the claimant's back, or that he walked in a bent-over position. In Machala v. Ott, Compensation Commissioner, 108 W.Va. 391, 396-397, 151 S.E. 313, 315, the Court stated: 'While it is the purpose of the Workmen's Compensation Law that it shall be liberally......
-
Hoff v. State Compensation Com'r
...367 S.W.2d 372. It has been repeatedly held that an award of compensation cannot be made on hearsay alone. Machala v. Ott, State Comp. Comm'r., 108 W.Va. 391, 151 S.E. 313; Machala v. State Comp. Comm'r., 109 W. Va. 413, 155 S.E. 169; Zion's Co-op. Mercantile Institution v. Industrial Commi......
-
Emmel v. State Compensation Director
...126 W.Va. 78, 27 S.E.2d 586; Damron v. State Compensation Commissioner, 109 W.Va. 343, 155 S.E. 119; Machala v. Ott, Compensation Commissioner, 108 W.Va. 391, 151 S.E. 313. See also 21A M.J., Workmen's Compensation, § The two phrases, 'in the course of' and 'resulting from' are not synonymo......