SKF Industries, Inc. v. Cody

• Citation: 276 A.2d 356,2 Pa.Cmwlth. 19
• Parties: SKF INDUSTRIES, INC. and Liberty Mutual Insurance Company, Appellants, v. Carl CODY, Jr., Deceased, Clara Cody, Claimant-Appellee.
• Decision Date: 14 April 1971
• Court: Commonwealth Court of Pennsylvania

276 A.2d 356

2 Pa.Cmwlth. 19

SKF INDUSTRIES, INC. and Liberty Mutual Insurance Company, Appellants, v. Carl CODY, Jr., Deceased, Clara Cody, Claimant-Appellee.

Commonwealth Court of Pennsylvania.

April 14, 1971.

Petition for Ahowance of Appeal Granted Sept. 3, 1971.

Roger B. Wood and Joseph R. Thompson Philadelphia, for appellants.

Stanley P. Stern, Philadelphia, for claimant-appellee.

Before BOWMAN, President Judge, and KRAMER and MENCER, JJ.

OPINION

KRAMER Judge.

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying the appeal of SKF Industries Inc. (employer-appellant) and Liberty Mutual Insurance Company (insurance carrier-appellant). The court below affirmed the decision of the Workmen's Compensation Board (Board) which had affirmed the adjudication of the referee granting an award to the claimant, Clara Cody (appellee) and her children.

This matter was instituted by the filing of a fatal claim petition with the Board by the widow of Carl Cody, Jr., deceased, who for ten years had been an employee of the appellant employer, and who, immediately prior to his death, had held the position of chauffeur.

The referee found that on March 10, 1966, the decedent was struck on the head by an overhead garage door at his place of employment. This resulted in severe headaches requiring medical treatment by his physician and hospitalization on two occasions ultimately resulting in his death on April 10, 1966. The referee found that the cause of death was a sub-dural hematoma and infection resulting from the head trauman.

The appellants present two basic issues in advancing their argument that the Board abused its discretion and committed an error of law. First, appellants state that it was improper to permit the testimony of the widow and the family physician (over the objection of the appellants) concerning statements made by the decedent to them related to the circumstances of the trauma in question. Appellants state that this testimony did not fall within the res gestae exception to the hearsay rule. Secondly, the appellants argue that it was improper to admit those portions of the hospital records based upon statements made by the patient-decedent to doctors and various hospital personnel. These alleged objectionable statements concerned the circumstances leading up to and resulting in the trauma in question.

The scope of appellate review in workmen's compensation cases was stated by the Superior Court in Heinzl v. Jones and Laughlin Steel Corporation, 157 Pa. Super. 454, 456, 43 A.2d 635, 636 (1945):

'It is the duty of this Court to examine the record to determine whether the findings of fact made by the referee and the board are supported by legally competent evidence, and whether on such findings the law has been properly applied. Smith v. Welsh Bros., 102 Pa.Super. 54, 156 A. 598 (1931); Watkins v. Pittsburgh Coal Co., 278 Pa. 463, 123 A. 461 (1924); Melini v. Saltsburg Coal Mining Co., et al., 119 Pa.Super. 356, 181 A. 330 (1935), and not to weigh the evidence to determine its probative value. Bradley v. Pioneer Oil Company, 109 Pa.Super. 585, 167 A. 660 (1933). The findings of the referee and the board have the effect of a verdict of a jury, and we must review the evidence and the inferences therefrom in the light most favorable to the claimant. Melini v. Saltsburg Coal Mining Co., et al., supra.'

In Stever v. Rea & Derick, 206 Pa.Super. 158, 212 A.2d 90, 93 (1965), the court said:

'Upon appeal it is the duty of the court to review the evidence to determine whether the board's findings are supported by evidence sufficient to convince a reasonable mind to a fair degree of certainty but the court may not weigh the evidence and substitute its judgment for that of the board.'

We next look to the question of whether hearsay evidence may be used in a workmen's compensation case, and we find in the case of Giordano v. Bianco, 204 Pa.Super. 219, 223, 203 A.2d 396, 398 (1964) that the court said:

'In Nesbit v. Vandervort & Curry, 128 Pa.Super. 58, 62, 193 A. 393, 395 (1937), this Court said: 'While awards in workmen's compensation cases cannot rest wholly on hearsay evidence * * * the Workmen's Compensation Law, by its very nature, contemplates liberality in the admission of proofs and the inferences reasonably to be drawn therefrom * * * and where the facts are sufficiently established by circumstantial evidence, hearsay testimony, not inconsistent therewith, if relevant and material to the fact in issue * * * may be considered for the additional light, if any, that it throws on the matter.''

The test of admissibility of a declaration as res gestae is whether circumstances were such as to preclude premeditation and consideration. Weshalek v. Weshalek, 379 Pa. 544, 109 A.2d 302 (1954). Although there is a need for spontaneity of declaration we hold that time alone is not the sole criterion to be employed in determining whether or not a particular declaration is part of the res gestae. No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be a part of the res gestae, but each case must necessarily depend upon its own circumstances. Whiting v. Fibber and Mollie Tea Room, 154 Pa.Super. 106, 35 A.2d 598 (1944).

In the case of Watson v. A. M. Byers, 140 Pa.Super. 245, 14 A.2d 201 (1940), an unwitnessed accident occurred to the decedent who thereafter left his job for the day, meeting several people en route home and remaining silent concerning the alleged accident. He did mention it later in the day to his wife, step-son and doctor. The court there held that although time is not the sole criterion for determining what may be included within the res gestae, nevertheless, protracted time coupled with silence to earlier met persons, do indeed dull the spontaneity and lack of premeditation of any later declarations. In this case the decedent did not mention the accident to his fellow-worker in the garage, nor to the guard at the gate where he signed out, nor to any other person at his place of work. These circumstances cast a shadow on the spontaneity of the statements he made to his wife, and we hold therefore that they were inadmissible. Heite v. Vare Construction Company, 129 Pa.Super. 204, 195 A. 437 (1937); Ceccato v. Union Collieries, 141 Pa.Super. 440, 15 A.2d 401 (1940); Schuch v. Harbison's Dairies, 150 Pa.Super. 582, 29 A.2d 216 (1942).

In Giordano v. Bianco, 204 Pa.Super. 219, 222, 223, 203 A.2d 396, 398 (1964) the Court cited Commonwealth v. Stallone, 281 Pa. 41, 126 A. 56, 58 (1924):

"Although the question of time between the occurrence and the declarations is an important one it is not conclusive. Under particular circumstances the res gestae may extend over a considerable period of time and the criterion is whether the declarations are made under such circumstances as will raise a reasonable presumption that they were spontaneous utterances created by the transaction itself and so soon thereafter as to exclude the presumption of premeditation and design.' And as President Judge Carroll of the court below puts it, 'In the instant case there is ample evidence to support the Board's finding that the statement of the decedent was generated by the...