I cannot concur in the majority opinion in this case.
The decision is grounded upon the question of the admissibility of the testimony of the son of the deceased workman, regarding the statements of the deceased as to how the accident happened. *Page 39
The evidence as given by the son is stated in the opinion and is as follows:
The son testified, over objection of the defendant, that his father was in "deep agony" and that his father told him he had hurt his side while lifting a crate of head lettuce in the kitchen of the college.
The son further stated that when he first saw his father, on his return for him, that he was holding his side and that during the drive of two miles to his home he suffered greatly, that on arriving at home he sat down upon a chair, that the decedent's wife applied hot cloths to his side, and that he was confined to his bed for a period of ten days — and still suffered greatly during that period. The son was again permitted to testify, over the objection of the defendant, as to conversations with his father while riding in the son's automobile, on the way to his home, and in which the father stated that "in lifting the head lettuce something gave way — seemed to be a sort of a snap." The son further stated his father was "at the point of death" for several days.
The decedent's wife testified that the decedent "wasn't a robust man — he was rather puny in health" and that on the day of the injury "his health was so that he was able to work"; that when she next saw him after her son had brought him home in the afternoon "he came in walking as though he could hardly get to the chair across the room, and he sat down and called for me to bring hot applications"; that he was suffering great pain; that she saw a protrusion on his side, which had not been there previously; that he vomited continuously; that a Dr. Smith was called and waited upon him for a number of days; that he went back to work on the first of March, and worked until the 29th of March, when he came home, took to his bed and died the 18th of April; and that during this period he was attempting to work he was brought home ill *Page 40 three times. The wife of decedent was not permitted to testify to what her husband said as to his condition and the cause thereof when she first saw him on the afternoon of December 12th.
The trial court admitted this evidence which established the causal connection between the injury and the death of the employee.
The majority opinion now holds that the admission of the evidence was error, as not being within the exception to the hearsay rule, and, since there was no other proof of how the injury happened, the judgment should be reversed and final judgment for the Industrial Commission should be entered here.
Under the evidence as above quoted it is difficult to understand the conclusion reached by the majority of the court. The facts stated in the opinion stamp the evidence as admissible under the exception to the hearsay rule.
Generally stated, the rule is that where statements are made concerning occurrences and facts, and such statements are made under such circumstances as to repel any suspicion of an ulterior motive, and under such circumstances as to stamp the statements as true rather than otherwise, the party to whom the statements were made, or who heard the statements, may testify thereto, and the same are admissible under the exception to the hearsay rule. 3 Wigmore on Evidence (2 Ed.), 736, Sections 1746, 1747 et seq. 3 Jones Commentaries on Evidence (2 Ed.), 2233, Section 1217 etseq., and cases cited in the notes. See also: 17 Ohio Jurisprudence, 342, Section 274 et seq., where, in the text and in the cases cited, similar evidence and the rules applicable are discussed and the admissibility upheld.
In the case of Taylor v. Industrial Commission, 13 Ohio App. 262, the evidence given by a fellow workman of statements made by Taylor as to how he received *Page 41 an injury to his head was held admissible, and many cases bearing on the question are cited. In the Taylor case, the court quotes from 3 Wigmore on Evidence, Section 1747, wherein the author says:
"`This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts."
One of the reasons for admitting such evidence is the necessity of the case. Such necessity is clearly shown in this case. The majority opinion finds that without this evidence there is none on the point. By this holding we see justice defeated, and the widow deprived of support under a law provided for dependent widows and children, all because the majority of this court holds the statements of her injured husband, found in agony by his son, as to how he hurt himself, spontaneously uttered, and made at his place of employment, could not be testified to by the son and should be excluded as hearsay.
If this is correct, every employee working alone would be put to the necessity of hiring or providing someone competent to testify in case he was injured and death resulted, in order to enable his dependents *Page 42 to receive the benefit of sharing in the state insurance fund, which law the Supreme Court has held should be liberally construed in order to bestow the beneficent effect of that law.
I find no supporting authority for the majority opinion, and ample authority requiring a contrary conclusion.
Moreover, Section 1465-91, General Code, provides: "Such commission shall not be bound by the usual common-law or statutory rules of evidence or by any technical or formal rules of procedure," etc., and this provision was held to be binding upon the courts in the case of Roma v. Industrial Commission,97 Ohio St. 247, 119 N.E. 461. See also: Humphries v. WheelingSteel Corp., 132 Ohio St. 263, 7 N.E.2d 230.
The case of Baker v. Industrial Commission, reported in 44 Ohio App. 539, 186 N.E. 10, involved the same question as presented in the instant case. The court in that case held that the statements of the decedent to his physician, as to how the injury occurred, were admissible, and further held that the circumstances under which the decedent was found at his place of work, sick and suffering, were sufficient to take the case to the jury.
In the case under consideration, the decedent was found at his place of work suffering great pain, bent over, and appeared to be in great agony. As stated in the concurring opinion in the Bakercase, supra, "where else, in the realm of probabilities, did Hastings sustain a strain that caused this hernia, if not in the course of his employment?" The instant case should have gone to the jury under the circumstances to draw the inference as to whether the deceased was injured in the course of his employment. "Where else in the realm of probabilities did Bake sustain the injury?"
The majority opinion is in direct conflict with the *Page 43 Baker case, and, in my opinion, considering the unsupported character of the decision on the evidentiary question, the case should be certified to the Supreme Court for its consideration.