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DENNIS v. JARKA CORPORATION ET AL. (12/28/56)

December 28, 1956

DENNIS
v.
JARKA CORPORATION ET AL., APPELLANTS.



Appeal, No. 146, Oct. T., 1956, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1952, No. 842, in case of Elizabeth Dennis v. Jarka Corporation et al. Judgment reversed.

COUNSEL

George D. Sheehan, with him John Paul Erwin, for appellant.

Elias Magil, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Woodside

[ 182 Pa. Super. Page 499]

OPINION BY WOODSIDE, J.

The question in this workmen's compensation case is whether there is any evidence to support the findings of the board, and the referee, that there was a casual connection between the accident suffered by deceased and his death nearly two years later of tuberculosis. The court below thought there was evidence to support the findings. We have searched in vain for it.

James Dennis was employed by the defendant as a longshoreman. On June 25, 1948, while alighting from his employer's truck he fell under its wheel and suffered fractures of his leg, pelvis, and hip, which totally disabled him. For this disability he sought compensation which, after hearing, was awarded to him. He died April 19, 1950. Although an examination at the United States Naval Hospital, approximately five months before his death revealed he was suffering from carcinoma of the esophagus, an autopsy disclosed that he had died of tuberculosis.

His widow, thereupon, filed a fatal claim petition. At the hearing on the petition she called Dr. Frank

[ 182 Pa. Super. Page 500]

Glauser who testified that "the trauma to his chest at the time he was thrown to the ground so weakened the lung that it became a culture meeting virtually for the tuberculosis bacilli which may or may not have existed in this man inasmuch as most of us carry tuberculosis germs with us." It was suggested by the court below, that "These words taken by themselves might support the theory that Dennis died because the accident lowered his resistance to a germ disease, but Dr. Glauser's testimony in its entirety, taken in the light most favorable to the plaintiff, ..." indicates that "when the lung was struck, dormant tuberculosis germs which were already in the body were stirred up and encroached on the bruised and weakened area." Claimant is not entitled to recover if the only effect of the accident was to lower Dennis's resistance to a germ disease. Stauffer v. Hubley Mfg. Co., 151 Pa. Superior Ct. 322, 30 A.2d 370 (1943); Olsweski v. Lehigh Navigation Coal Co., 145 Pa. Superior Ct. 193, 20 A.2d 874 (1941).

Dr. Glauser, the referee, the board and the court below all assumed that Dennis received an injury to the chest. If there is evidence of such an injury the award should be affirmed, but if there is no such evidence it cannot be supplied by sympathy for the plight of the claimant's wife.

A workmen's compensation award, supported by substantial and legally competent proof, has the same weight as a jury's verdict. Frick v. Pittsburgh School District, 167 Pa. Superior Ct. 431, 434-5, 74 A.2d 659 (1950). We must review the evidence in the light most favorable to the claimant, and she is to be given the benefit of inferences reasonably ...


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