MILLER, Justice.
Claimant is
the widow of George Page, deceased employee of the City of
Osceola, Iowa. She sought workmen's compensation from
such city and the Iowa Mutual Liability Insurance Company
its insurance carrier, asserting that her husband received an
injury on or about June 17, 1940, arising out of and in the
course of his employment with the city which resulted in his
death July 7, 1940. The answer of the city included a general
denial. Hearing was had before Hon. Ralph U. Woodcock, deputy
industrial commissioner, sitting as sole arbitrator, which
resulted in an award of compensation at the maximum rate of
$15 per week for 300 weeks, with statutory funeral and
medical allowances. The defendants filed a petition for
review which was submitted to Hon. John T. Clarkson
industrial commissioner, and resulted in a decision that
claimant had failed to establish that her husband's death
resulted from an injury arising out of and in the course of
such employment "by the greater weight or preponderance
of the competent testimony required by law"
accordingly, the award of the arbitrator was reversed and the
claim was dismissed. Claimant appealed to the district court
where the decision of the industrial commissioner was
affirmed. Claimant has now appealed to this court.
For us to
decide the questions presented by this appeal, it is first
necessary to determine whether certain testimony, which
claimant undertook to introduce and which the industrial
commissioner held was incompetent, should have been received
and considered by him. George Page was employed by the city
to mow weeds in its streets and alleys. The gist of the claim
for compensation herein is that, on June 18,
1940, while engaged in mowing weeds for the city, Page
received an injury to his back which produced a carbuncle
that led to staphylococcus septicemia and resulted in his
death on July 7, 1940. The vital question before us concerns
the competency of the testimony that was offered to establish
that an injury was received on June 18, 1940, that produced
the carbuncle. The commissioner held that the testimony of
claimant regarding a conversation in reference to such
injury, had with her husband on June 18, 1940, was hearsay
and incompetent. Such holding is challenged by this appeal.
Eliminating the objections and rulings whereby she was
permitted to answer, subject to the objection that this line
of testimony was incompetent, irrelevant, immaterial,
hearsay, not part of the res gestae, self-serving, claimant
testified as follows:
"He went
to work on the morning of June 18th, 1940, about six
o'clock and he came home about 4:30. His practice had
been to put in from eight to ten hours per day. He came home
earlier than usual on June 18th, 1940, and I had a
conversation with him upon his arrival at home. * * * I just
asked him how come he came home so early that evening. * * *
He told me he got a lick in the back and it made him sick. *
* * He told me the mower had dropped in a rut and almost
thrown him off, the first time that he had ever come as near
being thrown off a mower in all the seventeen years he mowed.
* * *
"Q. Did
he or not say when that had happened, that incident? * * * A.
Just a few minutes before he came home. * * *
"He came
in the house and I looked at his back. It was about half past
four and just as soon as he got his team tied up, it was
about five minutes after he got in the house that I saw his
back. It was all bruised and black and blue. It was right on
the back just above the hip bones. The bruised area was about
two inches up and down and I would judge it was three inches
on each side of the back bone. * * * He told me that he was
mowing and as he came home, he told me, he says, 'I
bruised my back,' and took his overall galluses down, and
he says, 'I want you to look at my back.' I did and
his back was bruised. * * * He said the mower dropped into a
rut and it struck him in the back. * * * When my husband came
in the house there was indication of pain. He came in and he
was bent over and was very white. * * * On June 18th, my
husband was home for lunch from twelve o'clock until one
and there was no indication of any pain or anything wrong
with him at that time. He made no complaints."
Subject to
the ruling that "the history which may be detailed by
the doctor will not be considered proof of injury" but
taken only for the purpose of evaluating his opinion, Dr. K.
R. Brown, the attending physician, testified:
"I was first called to see George Page about six
or six thirty in the afternoon of Saturday, June 22nd. * * *
Upon examination I found a carbuncle over the base of the
spine about four and one-half inches in diameter in a
circular area. It was definitely in the early stages. When I
examined the area on June 22nd, 1940, it was deep red and
swollen and extremely tender. There was evidence of points of
localizations where drainage would in time appear, but there
were no draining areas at the time I saw him. It was a
typical early carbuncle with focal points appearing where
drainage would occur. * * * I certainly felt that not only
the probable but very likely cause of the carbuncle was the
local bruising. The sequence of bruising followed by
infection is not at all uncommon in our medical experience.
The location of the carbuncle was the area that would be
bruised by a seat of the type on which he was sitting, and
the time, sequence, was logical for the development of
infection in that area as a result of a bruising. * * *
"Q.
Doctor, assuming that Mr. Page, on the 18th day of June,
1940, had been injured when the wheels of his mower fell into
a rut and that examination a few minutes after the injury
disclosed a bruise at the base of the spine approximately two
inches in width and six inches in length, and that this area
was black and blue at the time of examination shortly after
the bruise was received, would that bruise, in your opinion,
be the probable cause of the carbuncle and infected area that
you discovered when you made your examination on the 22nd day
of June? * * * A. Yes. * * * From a medical standpoint the
septicemia was unquestionably a complication of the
carbuncle."
The testimony
of claimant is the only evidence, that her husband received
an injury
arising out of and in the course of his employment, to
support Dr. Brown's conclusion that the death resulted
from such an injury. When the industrial commissioner
determined that her testimony concerning the conversation had
with her husband was hearsay and incompetent, he eliminated
testimony that was vital to her case. In holding that the
testimony was not competent as a part of the res gestae, the
commissioner stated:
"We have
nothing of record except hearsay and
self-serving declaration to show or that tends to show that
the alleged injury was one that occurred in the course of and
arose out of the employment. Claimant testified that her
husband made the declaration to her a few minutes after he
arrived at his home. What may be regarded as a few minutes is
necessarily a conclusion, but according to her testimony it
was after he tied his team. We find nothing to show how far
her husband traveled after the time that claimant said her
husband told her that he hurt his back or in what part of the
city he was located at the time that the alleged injury
occurred. May we go so far as to infer that the time when the
declaration was made brings it within the rule of res gestae?
We are not thus persuaded. * * *
"In the
case at bar we may assume that deceased made the declarations
to his wife as testified to by her, but on the record that we
have before us it is self-evident that the declarations and
the asserted occurrence were not contemporaneous or so
closely connected to the claimed occurrence as to be regarded
as a part thereof. * * * To hold as contended for by claimant
in the case at bar, we are required to speculate with
reference to the time that intervened between the asserted
injury and declaration which under the law we cannot and
should not do. Claimant further testified that when she
examined her husband's back it was black and blue which
indicates that far more than a short time had intervened with
the result that to infer that the asserted injury and
declaration were substantially contemporaneous is nothing
short of conjecture, therefore, we have no competent facts as
a basis for an inference. That being true, which must be
admitted, there is not sufficient competent evidence for the
application of the rule of res gestae. For that reason the
tendered testimony now under consideration was purely
hearsay, therefore incompetent and the objections thereto
should have been sustained."
In affirming
the foregoing pronouncement, the district court stated:
"I am
quite clear that if I were trying any sort of a civil suit in
which this evidence was offered as being part of the res gestae of the transaction involved in which this
man received his injuries, they...
