Opinion
Argued at Pendleton, November 1, 1927
Affirmed November 22, 1927 Costs retaxed December 13, 1927
From Malheur: DALTON BIGGS, Judge.
For appellant there was a brief over the name of Mr. I.H. Van Winkle, Attorney General, with an oral argument by Mr. Miles H. McKey, Assistant Attorney General.
For respondent there was a brief over the name of Mr. Bruce R. Kester, with an oral argument by Mr. R.J. Kitchen.
In Banc.
AFFIRMED.
Plaintiff, the mother of five minor children, made application to the State Industrial Accident Commission for compensation on account of the death of her husband, alleged to have been caused by an accident arising out of and in the course of his employment. The Commission rejected the claim on the theory that the death of plaintiff's husband was not the result of an accident but that it was caused by pneumonia. From an order rejecting the claim, plaintiff appealed to the Circuit Court. The cause was submitted to a jury and a verdict returned in favor of the plaintiff. Hence this appeal.
Under the stipulation of facts the only issue before the trial court was: What was the proximate cause of the death of Hartley? There is much evidence supporting the contention of the Accident Commission, but it is conceded that there is also evidence tending to show that the death might reasonably have occurred as a proximate result of the accident. Under the Constitution of this state we are not permitted to review this question of fact.
Defendant asks that the judgment of the lower court be reversed because it permitted Willis Lane, a lay witness who had visited Hartley while in the hospital, in response to the question, "Did Hartley get worse or better after said injury?" to answer, "He got worse." Lane was well acquainted with Hartley and was working with him at the time of the alleged accident. We think this evidence is within the exception to the general rule that lay witnesses are not permitted to express conclusions, but must state facts. It is well settled that a nonexpert witness should be permitted to testify as to the apparent health and physical condition of a person and as to whether there had been any change in that respect since the happening of an accident: Crosby v. Portland Ry. Co., 53 Or. 496 ( 100 P. 300, 101 P. 204). The reason for the exception to the general rule is well stated in White v. East Side Mill Co., 84 Or. 224 ( 161 P. 969, 164 P. 736). Relative to this phase of the case also see: Jones on Evidence (2 ed.), § 1251, and Wigmore on Evidence (2 ed.), § 568. The fact that Hartley died within two weeks after Lane saw him would indicate that he was reasonably accurate in his observations. It is certain that this answer did not influence the jury. Indeed, it is undisputed that Hartley rapidly became worse after his removal to the hospital and up to the time of his death. The question at issue was the proximate cause of his death.
About 7 o'clock in the evening, after Hartley's alleged injury, he returned to his hotel which was about 3 1/2 miles from the place of the accident. Mrs. Mayer, who operated the hotel, was asked:
"You may state what you heard and saw when the reported injury took place."
and was permitted to answer, over objection:
"Well that evening that he was injured and came in late and I, myself, and several others were in the office at the time. `Well,' we says, `Hartley, what is the trouble? You are late. What was the cause?' * * and he says, `Well, it is a wonder I wasn't killed,' and went on to state he was knocked off the truck."
It was error to admit this testimony. It was not a part of the res gestae: Fredenthal v. Brown, 52 Or. 33 ( 95 P. 1114). This statement by Hartley was made several hours after the accident and after he had traveled three or four miles to his hotel. It was not a spontaneous expression closely related to the transaction. It was clearly hearsay testimony and self-serving in nature. However, should this error cause a reversal? In the administration of the Workmen's Compensation Act we should not be greatly concerned over technical error. The statement of Hartley did not go directly to the vital issue of proximate cause. It was practically conceded by defendant that some sort of minor injury had been sustained as claimed by plaintiff. Hartley did not state the extent of his injury nor its effect upon him. The statement was also cumulative evidence, as the manner in which the accident happened was testified to by Lane, the only witness to it. If this case should be remanded it is doubtful whether a different result would occur if this objectionable evidence were eliminated. In view of the fact that this testimony has little relevancy to the question of proximate cause, we think the judgment of the lower court should be affirmed, notwithstanding such error, and it is so ordered. AFFIRMED.