Smith v. Welsh Bros.

Decision Date15 April 1931
Docket Number89-1931
Citation102 Pa.Super. 54,156 A. 598
PartiesSmith v. Welsh Bros. et al., Appellants
CourtPennsylvania Superior Court

Argued March 13, 1931

Appeal by Maryland Casualty Company, from judgment of C. P., No. 3 Philadelphia County, December T., 1930, No. 1210, in the case of Mae Smith, mother of Earnest Paschall v. Welsh Brothers and Maryland Casualty Company, Insurance Carrier.

Appeal from award for claimant by Workmen's Compensation Board. Before Ferguson, P. J.

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

The court dismissed the appeal and entered judgment for the claimant on the award. Maryland Casualty Company appealed.

Error assigned, among others, was the dismissal of defendant's exceptions.

Affirmed.

Louis Wagner, and with him Thomas J. Clary and Richard A. Smith, for appellant.

Samuel Kravitz, for appellee.

Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham, Baldrige and Drew, JJ.

OPINION

Drew, J.

This is a workmen's compensation case in which plaintiff, the dependent mother of Ernest Paschall, claims compensation for the loss of her son who was injured on August 1, 1929 while employed as a laborer by Welsh Brothers, coal dealers, and died March 19, 1930. The referee awarded compensation and the compensation board sustained the award; the lower court affirmed the action of the board and entered judgment for the claimant. Defendants and their insurance carrier, who was permitted to intervene as a party defendant, appealed. They claim there was not sufficient legally competent evidence to show (1) an accidental injury in the course of employment and (2) that death resulted therefrom.

The revisory powers of our courts in a case of this character, under the Workmen's Compensation Act of 1915, P. L. 736, and its amendments, are limited to such consideration of the record as will enable the court to ascertain whether there is competent evidence to support the findings of the referee, and whether, on such findings, the law was properly applied: Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 110 A. 731; Puza v. P. & R. C. and I. Co., 98 Pa.Super. 139. If there is legal evidence to support the findings, they cannot be disturbed, here or elsewhere: Guyer v. Equitable Gas Co., 279 Pa. 5, 123 A. 590. Such findings, and the inferences to be drawn from them, are as conclusive as the verdict of a jury: Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256; Ford v. Dick Co., 288 Pa. 140, 135 A. 903.

There was no witness to this accident. A co-employee, Mack Thompson, testified that at the time of the accident, he was at work at a place 15 or 20 feet from where Paschall was working alone, sweeping a coal car, and that Paschall called him. He said he then saw Paschall standing on the ground at the side of the coal car "holding his stomach." He was then permitted, under objection, to state what Paschall then said to him, which testimony is summed up in the following: "Q. Tell us the entire conversation you had, what did he say to you, and you to him when he left the coal car? A. He called me over to the coal car and said he was hurt, that he had fell, and wanted to go to the doctor. Q. Did he tell you how he fell? A. He said he fell in the car." This testimony was objected to as hearsay -- not competent evidence -- and defendants now contend that since there was no other testimony to establish the happening of the accident, the judgment for claimant should be reversed.

A well recognized exception to the rule against hearsay evidence is the admission of declarations which form part of the res gestae. Such declarations are admissible when they are spontaneous utterances which accompany, or immediately precede or succeed the act in question, so close in time and place as to be actually a part of said act and not the narrative of a past event nor the designed statements of the participants: Riley v. Carnegie Steel Co., 276 Pa. 82, 119 A. 832. In deciding what declarations are admissible under this doctrine, no fixed time or distance from the happening of the litigated act can be established as a standard to determine what shall be part of the res gestae. Each case must stand on its own facts: Com. v. Werntz, 161 Pa. 591, 29 A. 272; Com. v. Stallone, 281 Pa. 41, 126 A. 56; Com. v. Gardner, 282 Pa. 458, 128 A. 87.

It has been repeatedly held that where the declarations of the injured person were made at or near the scene of the accident shortly after its happening, or where there are grounds for the belief that the utterances were called forth by the nervous excitement produced by the event in question, they are admissible as part of the res gestae: Smith v. Stoner, 243 Pa. 57, 89 A. 795; Tomczak v. Susquehanna Coal Co., 250 Pa. 325, 95 A. 465; Eby v. Travelers Ins. Co., 258 Pa. 525, 102 A. 209; Guyer v. Equitable Gas Co., supra. This is especially so where there is other evidence in the case pointing to an accidental injury: Johnston v. Payne-Yost Con. Co., 292 Pa. 509, 141 A. 481.

There is considerable evidence in the case, in addition to the declarations objected to, that Paschall suffered an injury while working in the coal car. The claimant testified he was in good health when he went to work that morning, and Thompson, who accompanied him to work, testified to the same effect. Thompson said that immediately after he saw Paschall standing beside the coal car he took him in a truck of his employer to the hospital, and while on the way there deceased sat on the front of the truck "leaning over on his side." The hospital records show that Paschall received medical attention there and Thompson said he then took him back to his employer's yard...

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  • Jacobs v. Village of Buhl, 31145.
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    ...Works, 114 Pa.Super. 247, 254, 175 A. 45, 48, the Pennsylvania Superior Court recently said: "As stated in Smith v. Welsh Bros. et al., 102 Pa.Super. 54, 57, 59, 156 A. 598, 599: `In deciding what declarations are admissible under this doctrine, no fixed time or distance from the happening ......
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