Watson v. A. M. Byers Co.

• Court: Superior Court of Pennsylvania
• Citation: 14 A.2d 201
• Parties: WATSON v. A. M. BYERS CO. et al.
• Decision Date: 24 June 1940

14 A.2d 201

WATSON
v.
A. M. BYERS CO. et al.

Superior Court of Pennsylvania.

June 24, 1940.

14 A.2d 202

Appeal No. 231, April term, 1940, from judgment of Court of Common Pleas, Allegheny County, October term, 1939, No. 1559; Joseph A. Richardson, Judge.

Proceeding under the Workmen's Compensation Act by Dorothy Watson, widow of William E. Watson, deceased employee, opposed by A. M. Byers Company, employer, and Liberty Mutual Insurance Company, insurance carrier. From a judgment affirming an award of compensation, employer and insurance carrier appeal.

Reversed, and award set aside.

Argued before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES, and HIRT, JJ.

John H. Sorg and Ira R. Hill, both of Pittsburgh, for appellants.

Murray J. & Fred J. Jordan, of Pittsburgh, for appellee.

KELLER, President Judge.

The decision of this workmen's compensation case depends on whether there is substantial, legally competent evidence in the record to sustain the findings of the compensation authorities, (1) that claimant's husband suffered an accident in the course of his employment on March 23, 1937, and (2) that he died on July 9, 1937, as a result of that accident.

(1) The evidence as to the accident rests nearly altogether on hearsay declarations of the decedent. The legal question involved with regard to them is whether the declarations were within the recognized exception as to res gestae. Counsel for the claimant insisted at the hearing that the declarations were rendered admissible by the Act of September 29, 1938, Ex.Sess., No. 20, PL. 52, 77 P.S. § 42, which amended Article II of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as re-enacted and amended by Act of June 4, 1937, P.L. 1552, 77 P.S. § 41 et seq.; but he overlooked that Article II of that Act related to actions at law for damages, not to claims for workmen's compensation; and since the hearing, section 201.1(b), relied on as making the declarations of the employee admissible, has been declared unconstitutional by the Supreme Court in Rich Hill Coal Co. v. Bashore, 334 Pa. 449, 481-489, 7 A.2d 302. The admissibility of the declarations depends, therefore, on whether they came within the res gestae rule; and some statement of the facts is necessary to pass upon this point.

William E. Watson, claimant's husband, 69 years old, was employed by the defendant, A. M. Byers Company, to run the pumps in its pumphouse on the Monongahela River bank supplying water to the boilers and the mill, located between Sixth and Eighth Streets, Pittsburgh, Pa. He went to work about 9 o'clock A. M. and worked regularly until 4 o'clock P. M. His duties were to start the pumps, oil them occasionally and see that they kept running. He had no one working with him in the pumphouse. About ten minutes after 4 o'clock in the afternoon of March 23, 1937, his stepson, William Christy, who had gone to the mill to drive him to his home, saw him at the mill. As Watson walked over to get into the automobile Christy saw that he was limping and asked what was the matter, and he replied that he had dropped a wrench on his foot at the pumphouse. He did not tell Christy how long before it had occurred. When he got home he took off his shoe and started bathing his foot. His great toe was black and blue and bruised and inflamed. His wife, when she saw him limping, asked him what was wrong and he said a wrench fell on his toes about an hour before he left for home. She fixed hot water and salts for him and he bathed his foot. The next day he went back to work and continued to work until about a week before he went to St. Joseph's Hospital, which was on June 18, 1937. During the interval he was

14 A.2d 203

treated by Doctor A. M. Groves, the mill doctor. When he went to the hospital he got his own doctor, Doctor John O'Donnell, who treated him at the hospital until he died there on July 9th. Doctor O'Donnell testified (45a) that he "died from a thrombophlebitis¹ which extended from the great toe to the groin, which was precipitated by the infection in his great toe and which was made, of course, worse by his diabetes mellitus" (italics supplied); and at the same hearing in answer to the question, "Did the foot become gangrenous?" he testified (p. 46a) "Yes, the great toe became gangrenous but the cause of death was not the gangrene but the phlebitis infection which travelled along the vein through the toe to the large vein which goes along the thigh, the saphenous vein, and which finally went into the bloodstream. * * * The direct cause of death here was thrombophlebitis, gangrene of the great toe, diabetes mellitus". At a later hearing, he read from the hospital records of St. Joseph's Hospital the history of the case as it was given on Watson's admission, as follows: "Chief complaint, gangrene of the great toe on the right foot. Present illness: Patient's great toe on the right foot began to pain. Shortly following, the toe became discolored and turned black and was being treated by an outside physician, who discovered sugar in the urine and he was admitted to the hospital. * * * On the 19th, the following admission note was made: Ingrown toenail was removed by family physician, failed to heal after seven weeks and this physician reported no glycosuria. Subsequent examination by me showed glycosuria two hours after food—negative, fasting. Blood sugar was 224 milograms per hundred c.c.'s of blood.

"Q. Doctor, does the hospital record show the cause of death there? A. Yes, that is—

"Q. Will you read that into the record also, please? A. Diabetic gangrene,² diabetes mellitus.

"Q. And that was according to your own information? A. Yes, that was my own record."

We have not recited the declarations alleged to have been made by Watson to his stepson, and to his wife, that he had gone to the dispensary after the accident to see the doctor and that the doctor was not there, or to his...