Wills v. Berberich's Delivery Co.

• Decision Date: 17 November 1936
• Citation: 98 S.W.2d 569,339 Mo. 856
• Parties: Florence Wills et al., Dependents of Arthur Nat Wills, Appellants, v. Berberich's Delivery Company, Employer, and Massachusetts Bonding & Insurance Company, Insurer
• Court: Missouri Supreme Court

98 S.W.2d 569

339 Mo. 856

Florence Wills et al., Dependents of Arthur Nat Wills, Appellants, v. Berberich's Delivery Company, Employer, and Massachusetts Bonding & Insurance Company, Insurer

Supreme Court of Missouri

November 17, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Arthur H Bader, Judge;

Affirmed.

Edw C. Friedewald for appellants.

(1) Absent fraud, the findings of fact made by the commission within its powers shall be conclusive and binding upon appeal. State ex rel. Brewen-Clark Syrup Co. v Workmen's Compensation Comm., 320 Mo. 893; State ex rel. v. Haid, 38 S.W.2d 48; Simmons v. Miss. River Fuel Co., 43 S.W.2d 868. (2) The circuit court is bound by the record sent up by the commission, said record imports absolute verity, is presumed to be correct, and cannot be collaterally attacked. Higgins v. Heine Boiler Co., 41 S.W.2d 565; Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 575; Ritchie v. Rayville Coal Co., 33 S.W.2d 157. (3) In the absence of recitals of record or other competent proof to the contrary the commission must be held to have proceeded in accordance with the law and to have taken all the steps and found all the facts necessary to uphold its judgment. Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 578. (4) The Compensation Act is to be liberally construed with a view to the public welfare. Pruitt v. Harker, 43 S.W.2d 773; Betz v. Columbia Tel. Co., 24 S.W.2d 224; State ex rel. v. Haid, 51 S.W.2d 1008. (5) The sole question upon appeal is whether or not there was legally sufficient evidence upon which to base the award. Lawson v. Capitol City Contracting Co., 52 S.W.2d 421; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 52 S.W.2d 1019; Sec. 3349, R. S. 1929; Woods v. American Coal & Ice Co., 25 S.W.2d 144; Nordhaus v. Lechtman Printing Co., 84 S.W.2d 423; Jackson v. Curtiss-Wright Airplane Co., 68 S.W.2d 719; Wyatt v. Kansas City Art Institute, 88 S.W.2d 211; Gantz v. Brown Shoe Co., 90 S.W.2d 168; Henry v. Blackmer & Post Pipe Co., 90 S.W.2d 113.

Leahy, Walther, Hecker & Ely for respondents.

(1) The burden is on the claimant to prove by the preponderance of the evidence that the deceased's death was the result of accident and that it arose out of and in the course of his employment. Weiler v. Peerless Laundry Co., 64 S.W.2d 125; Duggan v. Toombs Foundry Co., 66 S.W.2d 978; Jackson v. Aetna Bricklaying Co., 59 S.W.2d 708; Munton v. Driemeyer Storage Co., 223 Mo.App. 1131; Doughton v. Marland Refining Co., 331 Mo. 291; Delile v. Holton, 334 Mo. 464. (2) An award can be made only upon presentation of substantial competent evidence and not upon conjecture or speculation. Frees v. St. Louis Pub. Serv. Co., 58 S.W.2d 760; Jackson v. Aetna Bricklaying Co., 59 S.W.2d 708; Stapelton v. Gunn, 69 S.W.2d 1104; Doughton v. Marland Refining Co., 331 Mo. 291; Gillick v. Fruin-Colnon Constr. Co., 334 Mo. 144. (3) The finding that plaintiff's death was the result of a spreading of the infection on his face, due to a trauma to the boil or indurated area, is the result of piling of an inference upon an inference. An inference cannot be piled upon an inference to support a finding of ultimate fact. Cardinale v. Kemp, 309 Mo. 276; Hayes v. Hogan, 273 Mo. 25; Weber v. Valier-Spies Milling Co., 242 S.W. 985. (4) The statement of fact of the deceased, given to the representative of the insurer following the accident, was admissible and competent as an admission against interest. Wynn v. Cory, 48 Mo. 348; Brown v. Holman, 292 Mo. 641; Lumpkin v. Sheidley, 227 Mo.App. 311.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This case originated with the Workmen's Compensation Commission, where appellants filed a claim, seeking compensation for the death of Arthur N. Wills. The referee, who heard the case, allowed the claim, and on review before the whole commission two members thereof approved it, while the other members dissented. On appeal to the Circuit Court of the City of St. Louis the award was set aside and the case remanded to the commission on the ground that the commission had erroneously excluded competent material evidence. From that judgment the claimants, appellants here, appealed.

The claimants are the widow and three children, dependents of Arthur Nat Wills, deceased. The total amount allowed by the commission was in excess of $ 8000. The defendants denied liability, hence the amount in dispute vests this court with appellate jurisdiction. The only disputed question in the case was whether the death of Wills was the result of injuries sustained in a fall while at work for the Berberich Delivery Company. Wills had been employed as a chauffeur, by the delivery company, for a number of years. On Saturday, the 27th day of May, 1933, while repairing the roof of a delivery truck at the company's garage, he fell and sustained severe and painful injuries to his left elbow and shoulder. Wills, at the time, had a small boil on the left side of his face. He was treated for his injuries and visited the doctor at his office for several days, but by Wednesday of the following week his condition became such that he was continuously confined to his bed. The infection, which had been confined in the boil, began to spread, finally resulting in septicemia from which he died on Saturday, just a week after his fall. It was the claimants' contention that the injuries resulting from the fall caused the infection to spread, and therefore compensation should be allowed. It was the contention of the defendants that the injuries sustained did not have any connection with the infection spreading, or the death of Wills, and therefore no liability existed.

To sustain their contention the defendants, respondents here, offered to introduce in evidence a written statement, made and signed by Wills, wherein he stated that he had not sustained any injuries to his face by the fall. The defendants also offered to prove, by a witness, a physician who treated deceased, that the deceased had made statements to that effect. Upon objection, made by appellants, the referee excluded this evidence. The circuit court held that the evidence was material and admissible, and therefore reversed the order of the commission and remanded the case for further consideration. We are of the opinion that the judgment of the circuit court must be affirmed.

The basis of the objection to the testimony was that since Wills was dead and not there to refute such evidence it was inadmissible. That rule applies where one of the parties to a contract is dead. The law seals the lips of one party to a contract where death has sealed the lips of the other party. That rule, however, does not apply to a situation as we have here. Evidence of statements made against interest may be shown even where the party who is alleged to have made them is dead. In this case the physician was not a party to any contract with the deceased and under the Compensation Law was a competent witness in the case. The evidence should have been admitted. This has been the rule since the early cases. [Wynn v. Cory, 48 Mo. 346, l. c. 348; Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311, l. c. 342, 235 S.W. 435; Wagner v. Binder, 187 S.W. 1128, l. c. 1155.] In the case of Greinke v. City of Chicago, 85 N.E. 327, l. c. 330, the Supreme Court of Illinois said:

"The declarations of an injured party as to his physical condition, brought about as a result of injury, are self-serving, and, at the best, hearsay evidence. Statements, however, made by an injured party, which form a part of the res gestae, or those made to his physician during treatment, constitute an exception to the general rule, and are admitted by reason of the fact that he will not be presumed to prevaricate at the very instant of his injury or while he is stating his physical condition to a physician from whom he expects and hopes to receive medical aid. . . ."

The evidence offered and rejected should have been admitted and considered by the commission in connection with the other facts proven in the case. Appellants cite the cases of Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805, 813, 68 S.W.2d 715; Crutcher v. Curtiss-Robertson Airplane Co., 331 Mo. 169, 52 S.W.2d 1019, and other cases. They quote the following from the Jackson case:

"The proceedings before the Compensation Commission are prescribed by a statute, Section 3349, Revised Statutes 1929 (Mo. Stat. Ann., sec. 3349, p. 8283), to be informal and without regard to the technical rules of evidence. While incompetent evidence will not support an award, Woods v. American Coal & Ice Co. (Mo. App.), 25 S.W.2d l. c. 146 (4), its admission does not justify setting aside an award in a case where there is substantial, competent evidence to support it."

The distinction between admitting hearsay evidence, or incompetent evidence, and excluding material competent evidence, is so...