McMahon v. Edward Budd Mfg. Co.

• Decision Date: 03 March 1933
• Docket Number: 127-1932
• Citation: 108 Pa.Super. 235,164 A. 850
• Parties: McMahon, Appellant, v. Edward Budd Mfg. Company et al
• Court: Pennsylvania Superior Court

164 A. 850

108 Pa.Super. 235

McMahon, Appellant, v. Edward Budd Mfg. Company et al

No. 127-1932

Superior Court of Pennsylvania

March 3, 1933

Argued October 4, 1932

Appeal by claimant from judgment of C. P., No. 1, Philadelphia County, December T., 1931, No. 3427, in the case of Catherine E. McMahon v. Edward G. Budd Manufacturing Company and American Mutual Liability Insurance Company, Insurance Carrier.

Appeal from award of compensation to claimant by Workmen's Compensation Board. Before Parry, J.

The facts are stated in the opinion of the Superior Court.

The court sustained the appeal and entered judgment for the defendant. Claimant appealed.

Error assigned, among others, was the entry of judgment.

Affirmed.

Thomas M. J. Regan, for appellant, cited: Slemba v. Hamilton &amp Sons, 290 Pa. 267; Johnston v. Payne-Yost Construction Company, 292 Pa. 509.

J Webster Jones, and with him Ralph N. Kellam and Irwin F. Holt, for appellee, cited: McCauley v. Imperial Woolen Co., 261 Pa. 312; Riley v. Carnegie Steel Co., 276 Pa. 82; Smith v. Phila. C. & I. Co., 284 Pa. 35.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Parker, J.

This is a workmen's compensation case in which a claim made by the injured party, but not reached during his lifetime, and a claim by the widow on behalf of herself and her minor children for his death were, by agreement, heard together. The claims were allowed by the referee and the board, but set aside on appeal to the common pleas court.

The question submitted to this court is whether there was competent evidence to support a finding by referee and board that decedent sustained an injury in the plant of the Edward G. Budd Manufacturing Company between 5 and 6 P. M., on October 31, 1929. More specifically, the defendants contend that hearsay evidence was received over their objections, and that without such evidence so received, there was no competent proof of an accident in the course of employment resulting in injury to John I. McMahon. If the evidence which was objected to as hearsay was properly received, there was sufficient proof of the claim. On the other hand, if the evidence objected to as hearsay was incompetent, we must determine whether that which remained was sufficient to sustain the finding. "We do not analyze the evidence for the purpose of determining on which side the weight thereof lies. That is the duty of the compensation authorities. So far as we are concerned, if there is competent evidence to sustain the findings, we accept them as true": Slemba v. Hamilton & Sons, 290 Pa. 267, 268, 138 A. 841.

It is necessary to refer to the evidence somewhat in detail. John I. McMahon, the deceased, had been in the employ of the Budd Company for about nine years, and, prior to October 31, 1929, was in robust health, never having lost any time on account of illness. The claimant depends upon the testimony of Balanger, a fellow employee, that of Grace McMahon, a daughter ten years of age, and her own evidence to prove the accident. Balanger testified that between 5:00 and 5:35 P. M., October 31, 1929, John I. McMahon, the deceased, was helping the witness to elevate an electric heater which weighed five hundred pounds, and was trying to fasten the heater securely to an I-beam, or channel iron, so that it would not drop or harm any one over night; that between 5:15 and 5:35 P. M., the witness was on the top of the heater and McMahon was on one side below endeavoring to lift it up, when a hook broke and one side of the heater sagged two inches. "Q. Do you know whether this heater hit Mr. McMahon or not? A. I could not have seen it from above. Q. The heater did sag, however? A. One end, yes, sir. Q. How high from the floor was the heater? A. Four feet three inches from the floor. Q. Mr. McMahon's position was-- A. He was standing on the truck on one side of that heater holding up, trying to lift it up, wasn't directly on the floor, but was one side of it -- when you lift it up you don't get underneath. Q. Was there any outcry or any complaint made by Mr. McMahon at the time of the subsidence of this heater? A. The only cry that was ever made by Mr. McMahon on the job was the lack of having a chain block to lift up the heater -- there was no outcry of being hurt. Q. Did he make any declaration to you that he had in any way been injured? A. No, sir." The witness and McMahon stopped work at 5:25 P. M., and the witness stated that he last saw McMahon at twenty minutes to six as the two were going up on the elevator, one going to one floor and the other to a different floor for the purpose of changing their clothing.

The widow testified that her husband returned from work on October 31st at six o'clock. "When he came in the first thing he said was he only wanted a light supper, I asked him why and he said he had just received quite a bump from a heater slipping in Budds, I asked him where he was hit and he said he was hit on the head. I looked to see if he was cut or anything and he had a lump right here (indicating on the right side midway between the frontal and occipital part of the head, the parietal region). Q. Did he tell you how this bump came? A. He did, even demonstrated with the knives and forks on the dinner table just the position the heater was in when he let go." She further testified that her husband returned to his work the next morning and so continued until December 6th when he returned home, but that from November 1st until December 6th, he had continuous headache and extreme nervousness. He became very ill on December 8th, was "practically unconscious" much of the time, and such illness progressed until he died on August 23, 1930. On cross-examination, she stated that her husband had a heavy head of hair and that she "could not go into it to see the bump" and did not see any laceration or bleeding, but that when she touched the lump on his head, he winced. A physician was called on December 7th, and nothing was said to him about an accident, the doctor treating him for grippe. A daughter, Grace McMahon, ten years of age, corroborated her mother as to the statements made by her father with relation to the sagging of the heater. The testimony of Mrs. McMahon and her...