The question whether or not the testimony of the witness Bullock with respect to an alleged injury to Guy Vecchio in the mine on October 19th, wherein he quoted Vecchio as saying, "I have hurt my leg" or "legs" was competent evidence is one of law which this court may pass upon. Having now decided that the evidence was competent the Industrial Commission on a rehearing is required to give it consideration and weight, including inferences as naturally follow *Page 141 from such testimony. Because of the error on the part of the commission in excluding this testimony from its consideration in making findings, on the theory that it was hearsay, the order should be reversed and the cause remanded for further proceedings. The burden, however, is on the applicant to show that an injury was received by the deceased in the course of his employment and that such injury was the cause of death. The finding of the commission that the streptococcic septicaemia from which deceased died was induced from one of two causes without making a definite finding thereon is subject to objection, but this finding is not of first importance on the present record.
The second finding is that there is no competent evidence to prove that the deceased sustained the abrasion over the anterior mid-tibial region on the right leg while in the discharge of his duties as an employee of the Independent Coal Coke Company. The evidence of Bullock with respect to the alleged injury in the mine wherein the deceased said, "I have hurt my leg" or "legs" while competent to be received and considered, yet fails to identify the scratch or abrasion on the leg as having been caused on that occasion by accident. If such evidence stood alone, an inference might be justified that the abrasion or scratch was caused by the accident. The abrasion could have been acquired outside of employment. How it was obtained is a matter of speculation. I am not prepared to say that on this record the Industrial Commission was, as a matter of law, required to reach the conclusion that the scratch or abrasion was caused by an accident received in the course of employment. It will be time enough to pass on the question of whether or not the evidence will sustain an award if the commission should find from all the competent evidence before it that the abrasion was caused by accident arising out of the employment and that such abrasion caused or gave rise to the infection which caused his death. That question at this time is not before us. On a new hearing other evidence may be adduced. *Page 142
The criticism of Dr. Hubbard's testimony is not wholly justified by the record. If it were, I could concur in what is said in the prevailing opinion with respect thereto. Dr. Hubbard was asked by Commissioner McShane: "Doctor, did you examine his teeth and tonsils, and bladder and urinary tract for infection or for an infected process? A. He had an infection through his throat. He could have had an infection in his kidneys. Dr. Robinson checked up on his urine." The inference arises from this question and answer that Dr. Hubbard did examine the throat of the patient and found an infection there, but apparently made no examination of the other parts of the body to discover whether or not there was an infected process. Having examined the throat, and found infection, he is entitled to give his opinion with respect to whether or not the septicaemia in the leg was caused or contributed to by the throat condition.
I also concur in the concurring opinion of Mr. Chief Justice Straup.