Wolford v. Geisel Moving & Storage Co.

Decision Date04 January 1919
Docket Number107
Citation105 A. 831,262 Pa. 454
PartiesWolford v. Geisel Moving & Storage Company, Appellant
CourtPennsylvania Supreme Court

Argued October 1, 1918

Appeal, No. 107, Oct. T., 1918, by defendant, from judgment of C.P. Cambria Co., June T., 1918, No. 58, dismissing appeal from order of Workmen's Compensation Board allowing claim in case of Annie Mary Wolford v. Geisel Moving & Storage Company. Affirmed.

Appeal from order of Workmen's Compensation Board affirming award of referee. Before STEPHENS, P.J.

Error assigned was the affirmance of the award of the referee.

The judgment is therefore affirmed.

George C. Bradshaw, with him John C. Sherriff, Alexander P. Lindsay and Evans & Evans, for appellant. -- There was no legal evidence to sustain the finding of the referee to the effect that the claimant's husband came to his death as the result of an accident suffered by him during the course of his employment on May 4, 1917.

Assuming that the testimony of Dorsey Wolford's complaint to his wife on the day of the alleged accident of a severe pain in his back is admissible, this complaint to his wife lacks the one element essential to give it effect, that is, that he did not tell her of anything that had happened to him to cause the pain. If any accident had in fact occurred to Dorsey Wolford on that afternoon he would have told it to his wife as an explanation of the cause of his pain: Van Eman v Fidelity & Casualty Co. of N.Y., 201 Pa. 537.

The statements made by the deceased as to the cause of the accident to his physician, Dr. Wagner, were clearly inadmissible: Gosser v. Ohio Valley Water Co., 244 Pa. 59; Northern Pacific R.R. v. Urlin, 158 U.S. 271.

If Annie Mary Wolford be awarded compensation for three hundred weeks, the children are not entitled to any compensation. The widow is entitled to all.

George E. Wolfe, for appellee. -- The declarations of a person concerning the cause of a supposed injury to him made shortly after it is claimed to have happened are admissible, though hearsay, as a part of the res gestae: Smith v Stoner, 243 Pa. 57; Van Eman v. Fidelity & Casualty Co. of New York, 201 Pa. 537.

Before BROWN, C.J., STEWART, FRAZER, WALLING, SIMPSON and FOX, JJ.

OPINION

MR. JUSTICE FOX:

Dorsey Wolford was in the employ of the Geisel Moving & Storage Company, the appellant. His duty consisted largely in the moving of pianos. On May 4, 1917, he was engaged in moving a piano about 4:30 in the afternoon. He had the assistance of two other men. Upon his return home that evening he complained to his wife of severe pain in his back. On the next day, May 5th, he told Miss O'Conner, an employee of the Geisel Moving Company, that he thought he had injured himself in moving a piano the day before. He also made a similar complaint when he subsequently consulted a physician. He continued at his customary employment until noon of May 13th, when he was obliged to give up work. A physician was called and found that he was suffering with severe pain in the right side extending down through the abdomen to the leg. On May 16th, on the advice of his attending physician, he was sent to a hospital where he died on May 20th.

About a week after his death the body was exhumed and a post mortem held. This disclosed a narrowing in one place of the intestines; the lungs showed solidification due to pneumonia. An abscess was found under the right kidney containing pus, which upon examination showed streptococci and staphylococci bacteria; the lungs showed the same organism, but no pneumonia cocci were found.

The referee of the Workmen's Compensation Board, in addition to the facts already stated, found that the death of Wolford was caused by abscess and pneumonia which resulted from abscess; that this abscess was brought about by the violent exertion and strain incident to the lifting of the piano on May 4, 1917. The referee having found these facts made an award to Mrs. Annie May Wolford, claimant, and against the Geisel Moving & Storage Company, defendant, of compensation for herself and children for a period of 300 weeks, as provided in Article III, Section 307, Clause 6, of the Workmen's Compensation Law, and thereafter until the youngest child shall have reached the age of sixteen years as provided by clause 1 of the above article and section, to be computed on an average weekly wage of $20.

On appeal to the Workmen's Compensation Board that board sustained the findings of fact and law of the referee and dismissed the appeal. An appeal from this award was taken to the Court of Common Pleas of Cambria County and the court in an opinion filed dismissed the appeal. From that decision of the lower court this appeal was taken.

The appellant suggested three questions for our consideration:

1. Was there sufficient legal evidence to sustain the finding of fact by the referee that the claimant's husband came to his death as a result of the accident suffered by him on May 4, 1917?

2. If compensation is payable to the widow for 300 weeks, is each child under 16 entitled to compensation after 300 weeks until it becomes 16?

3. If the children are entitled to compensation do they take under Clause 1 or Clause 9 of Section 307 of the Workmen's Compensation Act, and to whom is the award payable?

While it is true as urged...

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