Opinion
NOTE: Opinion filed at May Term, 1936, August 20, 1936; motion for rehearing filed; motion overruled at September Term, November 17, 1936.
1. WORKMEN'S COMPENSATION: Competent Evidence Rejected by the Commission. On the hearing of a claim before the Compensation Commission for a death following a fall in which deceased was injured, where evidence of claimant tended to show that the death was caused by infection and septicemia from a boil on deceased's face, a written statement offered by the defendant, signed by the deceased, wherein he said he had not sustained any injury to his face by the fall and the evidence of a physician who treated him that he made that statement, was improperly excluded by the commission and justified the circuit court in reversing and remanding the cause to the commission for further consideration.
2. WITNESSES: One Party Dead. Where one party to a contract is dead, the law seals the lips of the other party to a contract, but that rule does not apply to the evidence of a physician, not a party to any contract with the deceased, on the trial of a death claim, as to statements made by the deceased tending to show that the cause of his death was not the result of an injury claimed to have caused it.
Statements made to his physician by an injured party which form a part of the res gestae constitute an exception to the rule that declarations of an injured party are incompetent as hearsay.
3. COMPENSATION COMMISSION: Incompetent Evidence. The Compensation Commission need not follow technical rules of evidence and the admission of incompetent evidence by the commission would not justify setting aside an award supported by material competent evidence, but the commission may not reject competent material evidence offered by either party.
4. COMPENSATION COMMISSION: Competent Evidence. On the trial of a death claim before the Compensation Commission, where the wife of the deceased testified that he had a scratch on the left side of his face after the fall which is claimed to have caused his death, that a boil on his face had been treated by a physician on the day of the accident, and where medical experts agreed that trauma to an infected area such as a boil might cause a spread of the infection into the blood stream and cause blood poisoning, and where another physician testified that the natural resistance of a patient has a bearing on whether or not the infection takes place, the evidence was sufficient to justify a remanding of the case to the commission with instructions for further hearing.
Under the Compensation Law a liability is created if an injury aggravates an already weakened condition and death results.
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.
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 apparent that we need not discuss the question. In the cases cited it was pointed out that the Compensation Commission need not follow the technical rules on the law of evidence, and also that the admission of incompetent evidence would not justify setting aside an award if sufficient material competent evidence was introduced to support the award. But that does not mean the commission may reject competent material evidence offered by either party.
Respondent, however, argues that there was no competent evidence introduced to support appellants' claim, therefore, the case should be remanded to the commission with instructions to enter an award of no compensation. In this we believe respondents are in error. The wife of appellant testified that the deceased had a scratch on the left side of his face after the fall; that the boil had been dressed by a physician on the day of the accident. Another witness testified that he noticed an abrasion on the left side of deceased's face, which was not there prior to the accident. The medical experts seem to agree that trauma to an area that is infected, for example a boil, might break the defense barriers surrounding the infected area and cause a spreading of that infection. A medical expert, testifying for the defendants, made the following statements:
"There is no telling when the poison enters the blood stream and the doctor is up against it — sometime to do it any good. Injury or trauma to an area already infected has a very serious consequence on that infected area. And may cause the spread of that infection into the blood stream, causing blood poisoning. Depending on the trauma. Any blow if it caused more than just the effect on the skin. Medically, there is no way of determining how much damage is done by trauma to the tissues underneath the skin. You can't tell how far the tissues are broken down when the infection gets into the blood stream."
Another physician, a witness for defendants, testified on cross-examination as follows:
"The natural resistance of the patient has a great bearing on whether or not the spread of the infection takes place.
"If a man sustains a fall and is in shock. They get in shock — they get it and come out of it or stay in it; they don't take it in installments. He was a sick man if he was in shock. If he's sick his resistance is lowered no matter what the cause.
"By MR. HECKER:
"Q. An infection of that kind would have a tendency to lower the resistance? A. Yes.
"It is a fight between the resistance and the strength of the patient. If the patient is stronger he gets well; if the infection is stronger, he gets septicemia and dies."
The commission was also authorized to take into consideration the fact that deceased had been able to perform his daily labors prior to the fall and that immediately thereafter he became ill; that the infection began noticeably to spread within two or three days. While the condition of the elbow and shoulder greatly improved, as per the evidence of the doctor, the infection became worse from day to day. The abrasion on the face, of which there was evidence, may have been the result of a sufficient blow to break the protecting tissue surrounding the infection and yet, for the time being, of little consequence as compared with the pain at the elbow and shoulder. Therefore, it might not have been mentioned by the deceased, when asked about his injuries.
It is well settled that liability is created under the Compensation Law if an injury aggravates an already weakened condition and death results. See Harder v. Thrift Const. Co. (Mo. App.), 53 S.W.2d 34, l.c. 37 (8), where the Court of Appeals stated the rule thus:
"Generally speaking, the rule is that the act contemplates latent or dormant ailments; that the existence of a disease which does not impair the employee's ability to work will not prevent a recovery if the accidental injury accelerates or aggravates such disease to a degree of disability or of death; and that an actual aggravation of an existing infirmity caused by accident arising out of and in the course of the employment is compensable, even though the particular accident would have produced no such result in the case of a normal and healthy individual."
Numerous cases from other jurisdictions will be found cited in the opinion of the Court of Appeals in support of the rule there announced.
The judgment of the circuit court is affirmed. Cooley and Bohling, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.