Spence v. Bethlehem Steel Co.

Sloan, J., delivered the opinion of the Court. On May 5th, 1936, George Edward Spence, a West Indian negro, who had been employed for several years at the Sparrows Point mills of the Bethlehem Steel Company, after eating his breakfast, according to the testimony, then in good health, went to his work, which was that of a rigger, one of a crew erecting new equipment. He came home from work, without having touched his lunch, very ill, and one week later died of lobar pneumonia. A claim for compensation was filed by the widow, Leah Spence, with the State Industrial Accident Commission, on June 5th, 1936, wherein she stated that her husband had died on May 12th, 1936, as the result of an injury sustained by him on May 5th, 1936, while in the employ of the Bethlehem Steel Company at Sparrows Point.

Accompanying the claim was the report of the attending ⁵⁴² physician, Dr. C. Mansell Lawrence, who, in answer to question 5: “State in patient’s own words where and how accident occurred,” said, “Overcome by gas while working at Sparrows Point.” Question 6: “Give accurate description of nature and extent of injury and state your objective findings.” A. “Lobar pneumonia due to exposure to a poisonous gas while working.” Question 8: “Is accident above referred ■ to the only cause of patient’s condition?” A. “Yes.” And that the patient was not “suffering from any disease of the heart, lungs, brain, kidneys, blood, vascular system or any other disabling condition not due to this accident.” The only evidence in the record of the cause of» the alleged accident were the hearsay statements of the deceased to his wife, when he returned home on May 5th, and to the physician, who did not see him until May 10th, and the conclusions of the physician. No evidence was offered by the employer either to refute the charge or to show that the conditions under which the man worked were usual or customary. The testimony taken before the commission was read at the trial, on appeal, and the questions on the admissibility of evidence arose there. The claimant contends that, unless questions are objected to before the commission, they cannot be objected to on appeal, and cites Moller Motor Car Co. v. Unger, 166 Md. 198 , 170 A. 777 , Federal Tin Co. v. Hoffman, 164 Md. 431 , 165 A. 323 , and Savage Mfg.

Co. v. Magne, 154 Md. 46 , 139 A. 570 , as authorities for this contention. That was not the question decided in Savage Mfg. Co. v. Magne, supra, 154 Md. 46 , at pages 52, 53, 139 A. 570, 572 , the objection on appeal there being whether the commission could ask or allow leading questions even over objections made at the time, and this court held that the mere fact that a question asked before the commission was leading did not make it objectionable, but in that case it was said, citing Standard Gas Equipment Corp. v. Baldwin, 152 Md. 321 , 136 A. 644 , “that questions as to the admissibility of any testimony contained in the record from the ⁵⁴³ commission could be raised and determined in the trial court.” The law in effect then was section 56 of article 101 of the Code, as enacted by the Act of 1927, ch. 587 (Code [Supp. 1929] art. 101, sec. 56). Section 56 was so amended by the Acts -of 1931, ch. 406, and 1933, ch. 508, as to provide that appeals should only be heard on the record from the commission, with no right to introduce original evidence, and these acts were later repealed . and re-enacted by the Act of 1935, ch. 545, now section 56, article 101, of Flack’s Supplement to the Code.

In the meantime the cases of Federal Tin Co. v. Hoffman, supra, and Moller Motor Car Co. v. Unger, supra, came to this court, and it was held that objections to the admissibility of evidence must be made before the commission in order to be available on appeal. On this question the last two cases cited are not authority, as the restoration of the Act of 1927, ch. 587, also restores the ruling in Standard Gas Equipment Corp. v. Baldwin, 152 Md. 321 , 136 A. 644 , that objections to questions asked before the commission may be made on appeal to the trial court. The appeal was heard on the record made before the commission. The widow, Leah Spence, testified: “When he came home he looked black and blue, pain in his face and his eyes were blue and his lips, and I said Ed, what’s wrong, you look so funny, and he says”—Here an objection to the reading of the remainder of the answer was made by employer’s counsel, overruled and exception noted, and witness continued, “I been sick since I been on the job, I inhaled some gas and I been sick and I said, sit down, and he sat down.” A motion to strike out this part of the answer was also overruled and exception noted.

She was then asked, “Did he say when he inhaled the gas? A. He said after he started to work that morning.” “Q. Did he tell you how he was feeling? A. He said his head started to hurt first and then he gets sick in his chest and felt worse and worse.” She put him to bed, where he remained until his death seven days later. She suggested sending for a doctor, but.he said he wanted his ⁵⁴⁴ own doctor from the Point, that is, his employer’s doctor.

Word was attempted to be sent the next day through one named Taylor, who formerly worked for the same employer. There is no evidence whether Taylor ever took the message to the employer. Spence kept getting worse, and on Sunday, five days after he became ill, Dr. Lawrence was called. On May 11th the employee sent word to the employer of his disability by one Thompson, who returned the 12th, with a blank headed “Doctor’s certificate of Disability,” but the patient, in the meantime, had died.

Dr. Lawrence, asked what history he got, said: “The history I got, as soon as I got in there he told me he was poisoned and I asked how, and he said working at Sparrows Point, he inhaled poisonous gas and was very sick.” A motion by the employer to strike out the answer was overruled and exception noted. He was then asked: “Did he tell you where the gas was coming from?” admitted over objection and exception, to which he answered: “He said he was working in burning tar * * * Working in it I understood * * * He said he became very ill and vomited and was sick at the stomach and could ' not eat and that he had brought his dinner home and had been in bed ever since. * * * He was a very sick man, his face and lips discolored, and he had definite pneumonia. In both lungs. * * * My diagnosis was lobar pneumonia. Due to exposure.

Q. To this gas that you spoke of?” (Objection by employer overruled and excepted to.) “Due to exposure to this gas that he spoke of. Q. As I' understand it, he died of lobar pneumonia which, in your opinion, was induced by this poisonous gas of which he told you? (Objection overruled, and exception.) A. Yes. Q. Doctor, this pneumonia that you saw, was that the ordinary pneumonia?

A. It was not. Q. Wherein did it differ from ordinary pneumonia? A. Because the history of the case as given by the patient, it did not start like ordinary pneumonia, there was no initial chill. Q. Did he have the appearance of a person with the usual pneumonia.

A. No. Q. Wherein did his ⁵⁴⁵ appearance differ? A. In the discoloration of the face. Q. What did you attribute that discoloration to ? A. The poisonous gas.

Q. In your opinion would it? (Objected to.) Q. (by Commissioner Crothers). Could you tell whether it would or would not without knowing the kind of gas he was poisoned with?

A. Not definitely, and if I might say this, I was making a definite effort to get the man to the hospital, so we could be certain of the condition, but he died before I could get him a bed. The bed was vacant on Wednesday, and he died on Tuesday and I saw him on Sunday.” The record says: “Objection sustained because the witness does not know what kind of gas it was,” and exception noted. On cross-examination said he was not a specialist in the effect of poisonous gas on the human system, nor whether poisonous gas comes from burning tar. Asked whether poisonous gas can cause lobar pneumonia, he said, “It can,” but “You can have lobar pneumonia without that,” and “People have died of it without having it caused by poisonous gas.” The Accident Commission, on the issues submitted, found against the claimant, who took an appeal to the Baltimore City Court, which remanded the case to the commission for a finding on certain issues.

The commission reaffirmed its finding disallowing compensation. The case now comes to this court on an appeal from the City Court on four prayers for an instructed verdict in favor of the employer, which submit every question involved, except one on the admissibility of evidence. At the conclusion of the reading of the testimony taken before the commission, the employer submitted four prayers for an instructed verdict, the “A” prayer, that there is no legally sufficient evidence that George Edward Spence died as the result of an accidental injury arising out of and sustained in the course of his employment; “B,” that he did not give notice of his ailleged injury within ten days after its occurrence; “C” that there was no legally sufficient evidence to show any sufficient excuse for the failure to give such notice; “D,” that ⁵⁴⁶ the undisputed evidence is that the employer was prejudiced by the failure to given such notice. The evidence that the alleged injury arose out of and in the course of employment is derived from the hearsay evidence of the deceased employee, and, as in the opinion of this court the evidence is legally sufficient for submission to the jury, the judgment appealed from will be reversed and the case remanded for a new trial.

As will be observed from the testimony already quoted, the evidence upon which the claimant relies was admitted over the objections of the employer; on a retrial, the question of its admissibility will arise again, and, for this reason, should be considered on this appeal. Lycoming Fire Insurance Co. v. Langley, 62 Md. 196, 215 ; Shartzer v. Mountain Lake Park Assn., 86 Md. 335, 338 , 37 A. 786 ; McElroy v. John Hancock Mut. Life Ins. Co., 88 Md. 137, 145 , 41 A. 112 ; Rubin v. Leosatis, 165 Md. 36, 43, 166 A. 428 .

The important questions on this appeal are whether the statements and declarations of the employee as to how he was suddenly stricken ill are within the exceptions to the hearsay rule, so as to make them admissible, and, if within the exceptions, do they furnish a sufficient foundation for the opinion of his physician that the fumes or gas from burning tar did produce such fatal result. And, assuming this evidence to be legally sufficient, there is the question as to whether the alleged injury arose out of and in the course of his employment. One of the generally accepted exceptions to the hearsay rule is the testimony of physicians and surgeons, but this is not without its limitations. “It is generally accepted that medical or surgical testimony is not inadmissible because, like all such conclusions, it is founded in part on the patient’s own statement of symptoms, but such testimony founded on hearsay information from others would be excluded, though where that person is a nurse or other attendant, it would seem that the same necessity and propriety demanded the admission.” 1 Greenleaf on Evidence (16th Ed.) sec. 430-1; Geiselman v. Schmidt, ⁵⁴⁷ 106 Md. 580, 584 , 68 A. 202 . The weight of authority, however, seems to be thst the statements of the patient as to the cause of his condition or injury would not be admissible.

Greenleaf says (section 162 b) “The representation by a sick person of the nature, symptoms, and effects of the malady under which he is laboring at the time, are received as original evidence; if made to a medical attendant, they are of greater weight as evidence ; but, if made to any other person, they are not on that account rejected. (As to this, certain discriminations must be made. Statements as to the circumstances of an injury, * * or the nature of any injury are not within the exception, which covers only statements of an internal condition).” But 22 C. J. 269, sec. 270, qualifies this statement by saying, “But where a statement to a physician, although narrative in character, relates to a matter which it is necessary or proper for him to know in order that he may accurately diagnose and properly treat the case, it may be shown.” But see Damm v. State, 128 Md. 665, 667 , 97 A. 645 . In State v. Gedicke, 43 N. J. L. 86, 88, this was said: “It is an exception to the usual role excluding hearsay evidence, and is founded on the necessity of learning from the patient herself facts within her own knowledge, which the physician should know to form an intelligent and accurate opinion of her present health and situation.” See, also, Dundas v. Lansing, 75 Mich. 499, 502 , 42 N. W. 1011 ; Merkle v. Bennington Township, 58 Mich. 156, 160 , 24 N. W. 776 ; Omberg v. U. S. Mutual Acc.

Assn., 101 Ky. 303, 309 , 40 S. W. 909 ; Northern Pac. R. Co. v. Urlin, 158 U. S. 271, 273 , 15 S. Ct. 840 , 39 L. Ed. 977, 981 . Travellers’ Insurance Co. v. Mosley, 8 Wall. 397 , 75 U. S. 397 , 19 L. Ed. 437 , was a suit on an accident insurance