Bethlehem Steel Co. v. Traylor

Hrner, J., delivered the opinion of the Court. The rulings under review in this case were made during and after the trial of issues in the Baltimore City Court on appeal from an order of the State Industrial Accident Commission disallowing the appellee’s claim of compensation on account of the death of her husband, Wesley Harrison Traylor, which occurred while he was an employee of the appellant corporation. The issues involved the question whether Traylor’s death resulted from an accidental personal injury arising out of and in the course of his employment by the appellant, or whether his death was the result of natural causes unconnected with his employment. On each of the submitted issues the jury returned an answer favorable to the claimant’s contention.

The employer subsequently filed a motion to dismiss the appeal to the lower court on the theory that it was without jurisdiction to entertain the appeal under the provisions of the Workmen’s Compensation Law. The motion was overruled, and a judgment reversing the order of the commission was thereupon rendered. From that judgment the employer appealed. There are thirty-three exceptions in the record.

Twenty- ¹¹⁹ four relate to rulings on the admissibility of evidence at the trial of the issues, two to the granting or refusal of instructions to the jury, and the remaining exceptions were reserved in the coiirse of the hearing on the motion to dismiss. The testimony at the trial was mainly directed to the question whether the pneumonia which was the immediate cause of Traylor’s death resulted from asphyxiation by carbon monoxide gas, by which he was alleged to have been overcome five days previously while repairing a gas fuel engine at the employer’s plant. In opposition to his widow’s claim it was contended that the illness from which he died, was not accidental but wras produced by natural causes. That defense was supported by evidence tending to prove that there was no gas in the engine pit where Traylor was working, that other employees engaged there were not similarly affected, and that he attributed to indigestion the attack of vertigo, pain, and nausea which culminated in his fatal illness.

It was in support of the claim as against such a contesting theory that most of the testimony excepted to by the employer was offered, and its admissibility must be determined with proper regard to the particular nature of the controversy. It -was testified by Mrs. Traylor that her husband, on several occasions prior to his final seizure, came home from his work at the appellant’s plant feeling sick and complaining that he had been gassed; that when he returned the last time he crawled up the steps, was pale and black around the eyes and in great misery, and said he was suffering from the effects of gas; and that after remaining at home several days under the doctor’s care he was taken to the hospital,, where he died five hours later. Mrs. Carey, from whom Traylor rented the rooms which he occupied with his wife and child, testified that several times he looked sick on returning from his work, and said he had pains in his chest caused by gas; that the last time he came home she saw him as “he crawled up the steps on his hands and knees”, and when she asked what was the matter he said: “The damn thing got me now, Mrs. Carey”; that ¹²⁰ he looked as though he were dying, “was black under the eyes, of an ash color”; and that while he was at home in bed he “rolled from side to side and vomited bright red blood up sometimes in clots.” Otis Snead, who worked “in the same crew” with Traylor, testified that he had himself suffered headaches from gas in the engine room where they were employed, and that he had seen Traylor “knocked out several times by it”; that his appearance was “like as if any one was asleep and had deep circles under the eyes”; and that he was put on a stretcher and taken in an ambulance to the dispensary. On another occasion, the witness said: “I think we were working on an exhaust valve.

Traylor was working on an oil pump connected with the same engine. He was down in the pit and started up the steps, but fell and was taken out and carried to the dispensary. He just seemed to be limber and looked the same as he always did when he was full of gas. I know how men look when they get full of gas because I have seen several of them down at the plant.” At another time, Snead said: “We were working on the valve.

We thought it was shut — he (Traylor) was trying to open it and he went down and one of the fellows hollered to him, told him he had better come out, that there was too much gas for him and he could not stand it, and he started up and fell. * * * He was knocked cold and was taken to the dispensary on a stretcher. * * * Air was injected into him by means of a rubber hose through the nose.” In reference to the time when Traylor is said to have been made fatally ill by the gas, Snead testified: “Traylor was working on the exhaust valve, which is halfway down the pit. * * * I could smell that there was plenty of gas there that night. It kind of filled you up, choked you, got you weak and gave me a headache. I saw Traylor come out of the pit. * * * He stayed out for a few minutes and then went back. Erom his actions it looked as though he had cramps and was in misery. * * * Some ten minutes later he came out the pit again and together with S. P. Summerville who had him by the arm, headed towards the office. * * * Traylor looked pretty bad.

I did not see him again until the next ¹²¹ morning about seven o’clock, when I saw him sitting on a steam turbine in the electrical building. He was dark under the eyes and had an ashy appearance.” This was just before Traylor was taken to his home. The generation and elements of the gas used in the engines on which Traylor customarily worked while in the appellant’s service were described by Mr. Randall, the company’s chief chemist. The gas, he said, is conveyed to the engines from the blast furnaces, where it is produced in the process of smelting the ore, and contains about 28 to 30 per cent, of carbon monoxide which is “highly dangerous in large quantities.” He stated: “I have seen one or two people asphyiated by carbon monoxide.

Their appearance is pale, their lips colorless or bluish, and their eyes glassy. They are dark under the eyes. * * *” Mr. Randall said he had not been in the engine pits but had walked through the building where they were located and had not smelled any gas or suffered any ill effects from its presence. John H. Schütz, formerly employed as a machinist by the appellant, testified that Traylor and Snead were “knocked out by gas” several weeks before Traylor became finally disabled. “I was not in the pit that night,” he said, “but I know there was plenty of gas there because the grates were raised and I could smell it coming out of the pit.” That was an unusual condition, he testified. The testimony of Dr. Knell, who attended Traylor in his last illness, was, in part, as follows: “I knew Traylor a -year before he died and had treated his family.

He was a robust man of powerful build. On May 28th, 1927, at about ten o’clock in the morning, I was called to see Traylor. I found him sitting on the edge of the bed gasping for breath. He was suffering a good deal of pain in his chest. * * * His face was in a cold perspiration and occasionally when he gasped he would cough up red blood.

He said he had been gassed at Sparrows Point. * * * I have had experience with carbon monoxide poisoning. * * * I would say he did not have pneumonia that morning. My diagnosis at that particular time, there was a poisoning from something. It was necessary to ¹²² get him to the hospital, as I recall, on either the second or third day. By that time I had changed my opinion and I told his wife and also the hospital people that I thought bronchial pneumonia was setting in.” This development was expected, he said, “because an irritant will produce pneumonia.” On cross-examination Dr. Knell stated: “My impressions taken from what the man told me and what I know of acute poisoning, this man was suffering an acute gas poisoning. * * * The man absolutely was gassed. * * * Gas poisoning is liable to have an effect on almost any of the main organs.” Dr. Giehner, testifying as an expert, said: “In many instances, in veiy severe gas poisoning, if the patient survives, pneumonia follows: Where a person is suffering from pneumonia, it is not common or usual for him to look ashen and white and to spit bright red blood.

Pneumonia as a rule does not begin that way. Those symptoms would be descriptive of a collapse, of severe hemorrhage, or gas, or something of that nature, which is poisonous, * * In answer to a question based upon the hypothesis of the truth of other testimony, Dr. Giehner said: “I would consider the cause of death a secondary pneumonia induced by some deterioration of the whole system by gas, * * * pneumonia following gas poisoning.” Replying to questions on cross-examination, he testified: “A man who has once been gassed is much more liable to get it again than a person who1 has never been gassed. * * * It depends upon the amount of gas and the intervals. With Traylor it appeared that he had been gassed rather recently, some three weeks ago.” The first three exceptions were against the admission of the testimony of Mrs. Traylor and Mrs. Oarey as to' Traylor’s statements, when he was sick on his return from work, on occasion prior to the last, that he had been gassed at the plant. In Standard Oil Co. v. Mealey, 147 Md. 252 , it is said, in the opinion delivered by Chief Judge Bond: “Divergent views have been entertained in other jurisdictions on the relaxation by a court of its ordinary rule for excluding hear ¹²³ say evidence on review of compensation cases. * * * In Yew York, where the statutory provision for the relaxation of rules of evidence before the commission is the same as that in the Maryland act, hearsay testimony is received in court reviews, but an award is not permitted to be based on such testimony alone.

Carroll v. Knickerbocker Ice Co., 218 N. Y. 435 ; Belcher v. Carthage Machine Co., 224 N. Y. 326 ; State Treasurer v. West Side Trucking Co., 233 N. Y. 203 ; Hansen v. Construction Co., 224 N. Y. 331 . And to the same effect are Kelley's Case, 123 Me. 261 ; Royal v. Hawkeye Portland Cement Co., 195 Iowa, 534 ; Reck v. Whittlesberger, 181 Mich. 463 ; Garfield Co. v. Accident Commission, 53 Utah, 133 ; Rockefeller v. Same, 58 Utah, 124 ; Valentine v. Weaver, 191 Ky. 37 ; Riley v. Carnegie Steel Co., 276 Pa. 82 .” After stating reasons why the ordinary rules of evidence should not be too strictly applied or unduly relaxed in such cases, the opinion proceeds: “With these considerations in mind, then, we have to decide whether it was proper for the court below to admit statements of a deceased workman said to have been made to his wife, and to his physicians, that he had fallen and struck his side at a spot where the malignant growth later developed, and to refer to the jury the determination of the question of fact whether death resulted from an accidental injury, when this is all the evidence there is of such an occurrence-. Without extending the discussion at this time in an attempt to work out final general principles, we have concluded that in this particular case the action of the court in each respect was proper. The statements are- reproduced by three or four witnesses who heard them at first hand from the workman.

They refer- to a simple fact, and were such as to leave no room for substantia] misunderstanding, and it seems to us basing a finding of fact on them is, after all, hardly any greater relaxation of wise caution than has long been made in the admission of secondary evidence to- establish the contents of a writing which cannot be produced. We hold, therefore, that there was no reversible error either in ¹²⁴ the admission of the evidence or in the refusal of the prayer directing a verdict for the defendant because of insufficient evidence to support the finding of fact; and the judgment is. therefore affirmed.” In that case the hearsay testimony was the only evidence •of the accidental injury for which compensation was claimed, while in the present case there is proof by eye-witnesses of the facts to which the hearsay testimony relates. In support of the claimant’s theory as to the nature of her husband’s injuries, it was pertinent to prove that he suffered and finally died from the culminating effects of a series of asphyxiations (Victory Sparkler Co. v. Francks, 147 Md. 368 ), and the contemporaneous declarations of Traylor in regard to his earlier injuries from gas at his place of employment were merely cumulative as considered in relation to the direct-evidence tending to sustain that theory. It may be conceded that the considerations which influenced the ruling in Standard Oil Co. v. Healey, supra,, do not apply with equal force to the circumstances of this case, but the practical and controlling inquiry is whether the admission of the statements excepted to- presents an adequate ground for a reversal of the judgment and a remand of the case for retrial.

In our opinion, the ends of justice, as administered in a case arising under the remedial terms- of the Workmen’s Compensation Act, would not. be properly served by such a conclusion. Six of the exceptions were taken because of the admission of testimony of other workmen, which we have