Chief Consol. Mining Co. v. Industrial Commission

260 P. 271, 70 Utah 333, 1927 Utah LEXIS 44

• Court: Utah Supreme Court
• Decided: October 5, 1927
• Docket: No. 4503.
• Status: Published

Opinions

THURMAN, C. J.

This is a proceeding to review an award of the Utah Industrial Commission under the provisions of the Utah Industrial Act. Comp. Laws 1917, §§ 3061-3165.

On April 9, 1926, the defendants, as widow and minor children of one Jack McKellar, filed their petition with the Industrial Commission for compensation, alleging that on or about June 29 or 30, 1925, Jack McKellar was injured by an accident arising out of or in the course of his employment with the Chief Consolidated Mining Company, from which injury he died on or about July 13, 1925. It is alleged that the injury was caused by a falling rock striking him on the back while working as a miner under ground for said mining company, an employer subject to the provisions of the Utah Industrial Act. Hearings were had on the petition, and on September 9, 1925, the commission made findings of fact, conclusions, and award in favor of the petitioners, awarding to them compensation as dependents of the deceased. The commission found that the deceased was in the employ of the Chief Consolidated Mining Company; that the Standard Accident & Insurance Company carried the insurance; and that the deceased, Jack McKellar, received' the injury from which he died in the course of such employment. Compensation was awarded accordingly as provided by statute. An application for rehearing was seasonably filed with the commission, which application was denied.

The mining company and the insurance company, as plaintiffs here, have instituted this action to annul the award.

The finding of the commission as to the cause of the injury is vigorously assailed, and is one of the grounds relied on by plaintiffs for annulling the award. The finding objected to reads as follows:

“That Jack McKellar, on or about June 29 or 30, 1925, was either struck by a falling rock on the back or he struck his back against the cage. The commission feels certain that on or about said date Jack McKellar, while regularly employed by the Chief Consolidated Mining Company, injured his back, and as a result of said injury he died on July 13, 1925.”

This finding is ambiguous, indefinite, and uncertain, and, of course, is not in proper form. We regard this objection as of minor importance for it is a defect which evidently can be corrected by a positive, definite finding.

The more serious question, and one not entirely devoid of merit, is that there is no competent evidence to support a finding for an award of compensation, and that therefore the commission exceeded its jurisdiction in making such award.

M. J. Crow, a partner of the deceased workman, testified as a witness for the petitioners. He and deceased were working in the bottom of the shaft. He was uncertain as to the exact day, but it was in the latter part of June, 1925.. He testified that he knew that deceased got hit with a rock. He described the circumstance which was to the effect that, while working there on that occasion, deceased grabbed him by the arm, and said, “For God’s sake get back out of there; the rocks are coming down, and you will be murdered.” Deceased also said he got hit with a rock on the back. They stepped back, and stayed there awhile, “until they saw nothing falling and hitting in the water at the bottom of the shaft.” He said the falling rock was probably caused by an overloaded' cage. Afterwards they resumed their work. Witness also testified that some time after this — he was not certain how long — the deceased became sick, and called for the cage. Witness rang the bell, and deceased went up. Witness testified he reported to the shift boss that deceased got hit with a rock. On further examination by the insurance company’s representative witness said he saw rocks falling, and saw them splashing in the water; that the way some of them splashed they might have weighed 50 pounds; that deceased and witness resumed their work, and deceased never said any more till he went out sick. The whole tenor of the testimony of this witness is to the effect that neither he nor deceased, at that time, considered' it a serious accident.

Karl G. Hanney, for petitioners, testified he was top car man working1 in the mine when the bell rang for the cage. When deceased came up he fell unconscious on some timbers. When he came to he said he got hit with a rock. He said he was hit on the back. Witness did not report to anybody that deceased complained of being hit with a rock. Gailbraith, the acting shift boss, was there, and saw that deceased was unconscious.

Daniel Garrett, for petitioners, testified he was hoisting engineer at the mine at the time in question, and the cage was at the top. He got nine bells, which is a danger signal. He lowered the cage, and deceased came up. “He got off the cage, walked four or five steps, fell on a pile of timber, and he was out, just as dead as ever.” Witnesses Hanney, Curtiss, and Gailbraith were there, and went to him. It was five or ten minutes before he came to. Witness Was asked what deceased said, and answered: “He says he got hit on the back with a rock.” He never looked at deceased’s coat to see if there were any marks on it.

Mrs. McKellar, petitioner, testified that all she knew about the accident was that on July 3, 1925, as she was getting ready to go back into the hospital in Salt Lake City, deceased was going to Leamington to take care of some mining claims, and asked witness to paint his back with iodine, and that she did so. He said he was stiff and sore. There was an abrasion on the left side of his back, and it was swollen and inflamed. It looked as if it had pus in it. He said he got hurt slightly up at the mine. He never told witness anything about it. She was getting ready to go to the hospital, and was in a nervous condition, and he never told her. She did not have an idea that it was anything serious. Whén he got to Leamington Dr. Estes also painted his back, and advised that he be taken home as quickly as possible. They took him to Springville. Her physician there was Dr. Anderson, and he treated him. She did not think Dr. Anderson asked him about the history of the case. She thought he just treated him, and gave him some tablets. On cross-examination she said deceased always changed his clothes when he went into the mine, and that she never saw the clothes he wore there. The place she saw on his. back was about the size of a dollar. Dr. Anderson said he had blood poison. Deceased never told' witness how it happened. He never told her those things. He was reluctant to tell her because she worried so much. Dr. Hatch had told him that he should not tell her unpleasant things because of her nervous state. Deceased never said anything to her about the accident until July 3, 1925.

Mrs. Osier, for petitioners, testified to deceased’s condition at Leamington on July 3d. He was treated there by Dr. Estes, who put disinfectant on his back, and told witness to put hot cloths on it; that she did so the rest of the day, and all that night; that the wound was a little gouge on the back; that he was too ill that day to work on the mining claims. Witness said deceased told her he guessed that little hurt he got was going to. develop into something. It was inflamed, and looked bad. It looked like it might be infected. Deceased •said he got hurt in the mine. At one time he said he was struck.

Dr. Osier, one of the physicians of the Chief Consolidated Mining Company, testified that deceased did not come to him for treatment; that, in answer to a call from Dr. Anderson stating that Jack McKellar was quite sick from an infection arising either from a bite or a scratch, he advised sending him to the Holy Cross hospital; that was all he knew about it.

Dr. Estes testified he treated Jack McKellar in July, 1925; that he had a sore on his back, and had fever chills. Witness found an abrasion or open space, not exactly a lacerated area. It was about the center of the back. From the size and condition he could not tell what caused it, but it had evidently become enlarged. Deceased did not go into the point as to who he was working for or how he was in jured. Deceased was traveling through, and called on witness as a transient physician until he could get home. Witness said the injury could have come from a number of causes. He did not think it came from the bite of a deer fly; that deceased did not know exactly what caused the injury, but did not think it had rubbed on the car; he was not sure. Witness said the wound was nearly as large as the palm of his hand; that any abrasion of the skin could have been the starting point of an infection; that any bruise could have been the entering point; that an abrasion could have been caused through his clothing — he had seen abrasions made 'through clothing.

Dr. Anderson testified that about the first part of July, 1925, he treated Jack McKellar at the home of his mother-in-law in Springville; that his temperature was 103, and his pulse 110; that an examination of his back showed an abrasion — a very large scratch rapidly spreading infection up the back and to the sides of the abrasion; that he was suffering with blood poison; that they did not tell witness the cause of the wound, except something about working at a mine and getting scrubbed or pinched; that his impression was that they said it was an accident. Witness was aware of the fact that deceased was working for some mining company, and asked him if he had hospital benefits; that deceased said he had, and requested witness to call Dr. Osier at the mine. Witness considered it an accident, but made no report to the commission, as he understood the company carried its own insurance; that the only thing witness was concerned with was in getting McKellar into the hands of the people he was working for, and at his request called Dr. Osier. Deceased was delirious, and witness did not get much history of the matter; that deceased’s wife said he had an accident; that in his lucid moments deceased said something about coming up in a bucket, and said his back was scrubbed, or something of that sort; that the history of the case was not satisfactory; that deceased was a very sick man; that witness did not think the wound was from the bite of a deer fly; that such a wound might have been caused by a rock falling on deceased’s back, even if he had on a heavy rubber coat; that, if he was struck by a falling rock, and the part became infected, and he should scrub his back on the cage, it is possible he might have thought he had scratched his back. Witness did not remember that anything was said about a falling rock; that they seemed more concerned about his condition than about the cause of it.

Dr. J. W. Sugden testified that he made the death certificate in which it was stated the contributory cause of death “was abrasion on back — mine accident;” that deceased said that, while working he had occasion to crawl under the cage in the mine, and in coming out the corner of the cage in some way was sticking down, and that he caught himself on the back while crawling out; that, when M.cKellar arrived at the hospital, he had an open infection on his back; that deceased never mentioned about being hit with a rock, nor about being brought out of the mine and becoming unconscious; that deceased was sick, but could answ'er coherently. Witness could not tell whether deceased’s back was scrubbed or not; that it was an open infected area. Witness said that, if a rock should fall on a man from a perpendicular height of 100 feet, it would cause an abrasion of that kind through a heavy rubber coat.

With the exception of some testimony tending to impeach the testimony of the witness Crow, the above statement contains the substance of all the evidence material and necessary to- a determination of the issues involved. Indeed, it may be said that, in view of the limitations upon the power and jurisdiction of this court in cases arising under the Industrial Act, much of the testimony above set forth is testimony which this court has no power to consider for the purpose of annulling the award. We have stated it here solely because it is relied on by one or more of my associates as of controlling importance. It is admitted by those who entertain opposite views that the declaration of the deceased made to his companion when the rocks were falling, that he had been hit in the back with a rock, was of the res gestae, and that the evidence as to that was not open to objection that it was hearsay. So, also, in the same connection, it must be remembered the witness testified to hearing the rocks fall and splash in the water below. Inasmuch, then, as it was afterwards demonstrated beyond a doubt that deceased had received an injury to his back, which according to all the testimony, might have been caused by a falling rock, which injury resulted in blood poisoning from which he thereafter died, the contention that there is no evidence to support an award is, in my opinion, wholly untenable. But it is argued by those who disagree with me that the disserving statements made by the deceased as to another cause of the injury neutralized the testimony as to his having been struck with a rock, and that that, together with impeaching evidence, completely destroys the effect of what would otherwise be substantial evidence. Hitherto this court, in cases arising under the Industrial Act, has uniformly held that the Industrial Commission are the sole judges of the credibility of the witnesses, the weight of the evidence, and the facts, and that their decision thereon is final, if there is any substantial evidence to sustain it. The proposition that this court may, or should, take into consideration matters which by the Industrial Act have been conferred exclusively upon the commission is new in this jurisdiction, and, in my opinion, is revolutionary in its tendency. Such a rule, if now adopted, will greatly extend the hitherto recognized limits of the jurisdiction of this court, and fly in the face of the statute. Comp. Laws Utah 1917, § 3148a, as amended by. Laws Utah 1919, c. 63, at page 165. The statute reads:

“The findings and conclusions of the commission on questions of fact shall be conclusive and final and shall not be subject to review.”

By observing the provisions of that statute, and conceding. to the commission the jurisdiction conferred upon it, there is no difficulty in properly determining the issues involved in the instant case. It cannot he successfully denied that there is substantial evidence in the record that in the latter part of June, 1925, Jack McKellar, while engaged in. his employment as a miner for the plaintiff mining company, was struck in the back by a falling rock; that it caused an abrasion or wound in his back, resulting in blood poisoning, from which he died in a few days thereafter. Testimony was also admitted to the effect that, when deceased came to the top of the shaft some time after he claimed to have been struck with a rock, he fell in a faint, and, on becoming conscious, he was asked what was the matter. He again said he had been struck with a rock. It is contended that this statement of deceased was hearsay, and therefore inadmissible. As it is not contended that the award should be annulled on that ground, it is unnecessary to discuss the merits of that question, in the instant case. For present purposes it is sufficient to say, as before stated, there is competent evidence to prove that deceased was struck by a falling rock causing an injury Which eventually resulted in his death. There is also evidence of admissions by the deceased from which it might be inferred that his injury was caused in some other way. These admissions raised a conflict in the evidence — a matter exclusively within the jurisdiction of the commission to determine what the fact is. *

For the reason that the finding of the commission as to the cause of the injury is ambiguous and uncertain, and that it cannot be determined therefrom whether the commission intended to find that the deceased was struck by a falling rock, as testified to by his companion, or struck or rubbed his back against the cage, the award is annulled, and the cause remanded for such further proceedings as the commission may determine, within the limits of their jurisdiction.

CHERRY, GIDEON, and HANSEN, JJ., concur.