Nesbit v. Vandervort & Curry

CourtSuperior Court of Pennsylvania
Citation193 A. 393,128 Pa.Super. 58
Docket Number33-1937
PartiesNesbit v. Vandervort & Curry et al., Appellants
Decision Date15 July 1937

Argued April 14, 1937

Appeal from judgment of C. P. Allegheny Co., April T., 1935, No 3258, in case of Jessie E. Nesbit v. Vandervort & Curry and Norwich Union Indemnity Co.

Appeal from award of Workmen's Compensation Board.

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

Award affirmed and judgment entered for claimant, opinion by T. M Marshall, J. Defendants appealed.

Errors assigned, among others, were dismissal of exceptions to decision of board.

Judgment affirmed.

Samuel G. Wagner, with him George Y. Meyer and L. A. Nunnink, for appellants.

Horace Thomas, Jr., James F. Coyle, and Horace Thomas, for appellee, were not heard.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Keller, P. J.

William Q. Nesbit was employed as an embalmer by Vandervort & Curry, undertakers, in Coraopolis, Pennsylvania. He was their only employee. If he was not covered by the insurance carrier's policy, nobody was. His employment was not continuous. The nature of the business was such as to require his services only when a body was to be embalmed. But whenever needed by them he was on call and responded. He assisted them in the preparation for burial of about 65 bodies in the course of a year and was paid $ 10 on each occasion. He was an employee working under them, not a contractor, as contended by the insurance carrier defendant at the hearing.

On November 10, 1932, about 7:00 o'clock in the evening, he was sent for by his employers to help embalm the body of one Andrew Shingler, who had died of a ruptured abscess in the region of the diaphragm. An autopsy had been performed, which disclosed pus in that region. In performing the autopsy the ribs were severed by 'cutting forceps' in order to expose the heart, lungs and organs beneath. But the severing was not a clean or smooth cut or break. [1] It left sharp edges on the rib bones. A part of Nesbit's work that evening was to tie off the carotid artery. To do so he had to reach up past these rib bones with their sharp edges.

Nesbit returned to his home some time after dark and as soon as he came into the house said to his wife, "Look at the scratch I got embalming that body," and showed her a scratch near the base of the back of the second finger of the left hand. It was about half an inch long and had bled, but was not then bleeding. It seemed a rather deep scratch or cut. He said further, "I don't like it, knowing what was wrong with the man. What shall I put on it?" She got him some mercurochrome which she put on it. He was restless nearly all night and his hand started to swell during the night. The next morning he went to his employers, showed Mr. Curry the scratch, said he had got it "last night" while working on the Shingler body, and asked for some salve which they kept for such cuts or scratches. When he arrived home that night he was sick and suffering great pain in his left hand, which was swollen to several times its natural size. The next morning, November 12th, Doctor Braden, the family physician, was called in. Fortunately for the claimant, he happened to be the same doctor who had performed the autopsy on Shingler. He was told the history of the illness, found an ulcer at the point where Nesbit had received the scratch and diagnosed the trouble as cellulitis. The next day, by the doctor's orders, Nesbit was taken to a hospital, where his condition grew steadily worse and five days later, on November 18th, he died of streptococcic cellulitis. The pus taken from his hand was sent to the laboratory and found to "consist of almost pure streptococcus." The doctor testified that in his opinion Nesbit's death was the direct result of the infected scratch on his hand, and the circumstances all pointed to a scratch from one of the sharp bone edges in Shingler's body.

No fair minded person reading the record in this case can have any reasonable doubt that Nesbit's death was directly due to a virulent infection received through a scratch on his left hand which he got while he was engaged in embalming Shingler's body. His wife testified that he had no scratch on his hand when he left to go to his employer's place to do the embalming. He had it when he came back and referred to it immediately on his return. At that time, and when he told his employer the next morning, he had no reason to expect any fatal or even serious result. On the other hand, the subsequent events leading up to his death are the natural sequelae of a virulent streptococcic infection. The circumstances all point to the sharp edged bones as the cause of the scratch and the pus from the abscess in the body as the source of infection. Leaving out of the case the declarations to his wife and to the doctor and to his employer, as too remote to form part of the res gestae, the circumstances, as shown by the relevant testimony of competent witnesses, point unmistakably to death from an accidental injury received while in the course of his employment. These circumstances are at least as strong and convincing as in a number of cases where they were held sufficient to sustain an award or a verdict, even with the declarations of the decedent, objected to as not being within the res gestae rule, left out. See Wiltbank v. Fire Assn. of Phila., 293 Pa. 206, 142 A. 208; Johnston v. Payne-Yost Const. Co., 292 Pa. 509, 141 A. 481; Bracken v. Bethlehem Steel Co., 115 Pa.Super. 251, 175 A. 643; Tomczak v. Susquehanna Coal Co., 250 Pa. 325, 327, 328, 95 A. 465; McCauley v. Imperial Woolen Co., 261 Pa. 312, 323-325, 104 A. 617; Smith v. Welsh Bros., 102 Pa.Super. 54, 57, 156 A. 598; Thompson v. Conemaugh Iron Works, 114 Pa.Super. 247, 255, 256, 175 A. 45; Van Eman v. Fidelity & Casualty Co., 201 Pa. 537, 51 A. 177; Neely v. Provident Life & Acc. Ins. Co., 322 Pa. 417, 185 A. 784.

In such cases the fact finding body, the referee, board or jury, has a right to use the conclusions and tests of ordinary everyday experience and draw the inferences which reasonable men would thus draw from similar facts: Neely v. Provident Life & Acc. Ins. Co., supra.

While awards in workmen's compensation cases cannot rest wholly on hearsay evidence, (unless not objected to: Poluski v. Glen Alden Coal Co., 286 Pa. 473, 476, 133 A. 819) the Workmen's Compensation Law, by its very nature, contemplates liberality in the admission of proofs and the inferences reasonably to be drawn therefrom (McCauley v. Imperial Woolen Co., supra, p. 325), and where the facts are sufficiently established by circumstantial evidence, hearsay testimony, not inconsistent therewith, if relevant and material to the fact in issue (Poluski v. Glen Alden Coal Co., supra, p. 476) may be considered for the additional light, if any, that it throws on the matter.

In the present case, the employer plainly showed that he had no sympathy with the defense against this obviously just claim. The contest was the act of the insurance carrier, who is given the right to defend as the employer's representative. We realize that insurance companies have to be on their guard against fraudulent claims, but a reasonably wide experience ought to give them the ability to discriminate between suspicious claims that savor of fraud and obviously honest ones,...

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    ...as hearsay. Defendant also quotes the comments of President Judge Keller of the Superior Court in Nesbit v. Vandervort & Curry et al., 128 Pa.Super. 58, 193 A. 393, 395, as to the "liberality in the admission of proofs" in Workmen's Compensation cases and that "where the facts are sufficien......
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