Summary
In Jensen v. Wheeler England, 51 Idaho 91, 1 P.2d 624, there was no other competent evidence upon which to base the award.
Summary of this case from Arneson v. RobinsonOpinion
No. 5719.
July 21, 1931.
APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.
From order of the district court affirming ruling of the Industrial Accident Board denying compensation, claimant appeals. Affirmed.
J. Ward Arney, for Appellant.
The testimony of Mrs. Jensen as to the facts in connection with the accidental injury was not hearsay, but was competent. This testimony was part of the res gestae.
The statements made by Jensen to his wife immediately upon coming home two hours after the injury were obviously voluntary and spontaneous and made at a time so near to the accident as to preclude the idea of deliberate design, with no opportunity for the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. ( Erickson v. Rutledge Timber Co., 33 Idaho 179, 191 Pac. 213.)
E.B. Smith, for Respondents.
"The burden rests upon the one claiming compensation to show by competent testimony, . . . . not only the fact of an injury, but that it occurred in connection with the alleged employment and that it both arose out of and in. the service at which the injured party was employed." ( Walker v. Hyde, 43 Idaho 625, 253 Pac. 1104; C. S., secs. 6217, 6323, 6324; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992, and authorities therein cited; T. J. Dye Son v. Nichols, 81 Ind. App. 13, 141 N.E. 259; Westman's Case, 118 Me. 133, 106 Atl. 532.)
An award cannot be made on hearsay or other incompetent evidence; it must rest on more than mere conjecture. If there is incompetent evidence in the record, it must be excluded, and only competent evidence must be considered in determining the disputed questions of law and fact. ( Wilson v. Standard Oil Co., 47 Idaho 208, 273 P. 758; Butler v. Anaconda Copper Min. Co., 46 Idaho 326, 268 P. 6; Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Erickson v. E. Rutledge Timber Co., 33 Idaho 179, 191 P. 212; Lloyd-McAlpine Logging Co. v. Industrial Com., 188 Wis. 642, 206 N.W. 914; Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036; Bolten v. Columbia Casualty Co., 34 Ga. App. 658, 130 S.E. 535; Englebretson v. Industrial Acc. Com., 170 Cal. 793, 151 P. 421.)
This is an appeal from a judgment of the district court affirming the findings, conclusions and order of the Industrial Accident Board, denying appellant compensation under the Workmen's Compensation Law of this state.
Claimant's husband died September 23, 1930, of staphylococcus infection. The infection resulted in abscesses; first an abscess deep in the upper part of the right thigh, then on the patient's arm, his forehead, in his lungs and elsewhere, so general as to cause death. Claimant attempts to trace the cause of death to a strain in the right thigh, which it is claimed resulted from an industrial accident. In this behalf it is claimed that the decedent, at about 10 o'clock in the evening of the twenty-second day of August, 1930, while oiling the steam-shovel, upon and about which he was employed, accidentally stepped off the shovel upon loose rocks and received a severe strain or wrench in the muscles of his right thigh, which developed into the unfortunate condition resulting in death. This was four days before his condition became so bad that he was forced to quit work.
The bacteria found in the blood incident to the infection was of a kind not normally in the body. It must get in from the outside, as through an abrasion or cut in the skin. No such immediate origin was found. Nevertheless, from the testimony of the doctors, it appears that where one's blood is infected with the kind of bacteria found, a severe strain or wrench might be responsible for the condition resulting in death. That is to say, severe strain might, where such infection was lingering in the body, bring about a lessening of the natural resistance in the location of the strain so that a first abscess would occur there to such an extent that its bacteria would circulate in the blood stream, which might, except for the strain, never have located and might have gradually been eliminated.
Upon the hypothesis that the deceased, on the night of August 22d, did suffer a severe strain of the muscles of the right thigh in which the first abscess was found, two of the doctors gave it as their opinion that the deceased's condition and death was brought about by such strain.
One of the attending physicians, not in response to any hypothetical question, but considering the hospital's record and history of the case, gave it as his opinion that it was improbable the condition or illness of which Jensen died so resulted.
The Industrial Accident Board found:
". . . . There being no direct evidence that the deceased, James William Jensen, on the 22d day of August, 1930, or at any other time, or at all, while in the employ of Wheeler England stepped from the shovel onto some loose rocks, slipped, and wrenched his leg, and the proved facts and circumstances surrounding the deceased Jensen's alleged injury not being sufficient to enable us to logically infer that said deceased did so step from the shovel onto some loose rocks, slip and wrench his leg, and the answers of the expert witnesses for the claimant not being based upon hypothetical questions containing all of the facts and circumstances as herein found, and it appearing to us that the physicians and surgeons who actually attended the said James William Jensen, now deceased, during his illness are in better position to form an opinion as to the cause of the deceased's death, and as to the cause of the abscess in his leg, we expressly find that the abscess which was found in deceased's right leg was not the result of his stepping from the shovel onto some rocks, . . . . and that the death of the said deceased was not the result of a personal injury by accident arising out of and in the course of the deceased's employment with the defendants, Wheeler England, on or about the 22nd day of August, 1930, or at any other time, or at all."
The board entered an order denying compensation.
The judgment of the district court, sustaining the ruling of the board, was upon the ground that the only testimony offered in support of the alleged injury was hearsay and did not constitute competent evidence of the claimed accident.
The only testimony we can find in the record in proof of an accident is the testimony of claimant to the effect that the deceased on the night of August 22d, on returning from work, complained of his leg hurting and told her he had stepped off the shovel on to some rocks and slipped and he had wrenched his right leg.
Clearly this was hearsay. And, where statements to a witness made away from and more than two hours after the alleged occurrence, when the declarant was apparently in a deliberate or reflective state of mind, and such statements are in the nature of an ordinary narration of past events, they are not within the exception to the rule against hearsay as res gestae, and are incompetent as evidence. ( Erickson v. E. Rutledge Timber Co., 33 Idaho 179, 191 P. 212; Wilson v. Standard Oil Co., 47 Idaho 203, 273 P. 758.)
"Much latitude is permitted the board in the admission of evidence, but findings of fact cannot be based on incompetent evidence." ( Wilson v. Standard Oil Co., supra; Garfield Smelting Co. v. Industrial Com., 53 Utah, 133, 178 P. 57; 2 Schneider's Workmen's Compensation Law, sec. 508.)
There being no competent evidence upon which to base an award, the judgment of the district court must be affirmed, with costs to respondent.
Lee, C.J., and Budge, Givens and Varian, JJ., concur.