*1 disability permanent compulsory aas matter of law. Besides, contrary there was sufficient evidence in the case upon issue, raise a conflict prevents the ultimate disturbing findings this court from made. denying compensation
The order is therefore affirmed. J., FOLLAND, concurs. HANSEN, JJ.,
STRAUP and ELIAS concur in the result. HANSON, EPHRAIM J. except
I (by concur toas the statement “that the review court) question this is limited to the whether com- denying compensation arbitrarily mission has or ca- disregarded priciously uncontradicted evidence.” Whether that is a true test authority of the limitations of the of this reviewing court orders of the Industrial Commission brought review, express here I opinion. on writ of
DIAZ et al. v. INDUSTRIAL COMMISSION
OF UTAH et al. July (13 No. 4812. 307.) Decided 1932. P. [2d] *2 Hougaard, Hanson and A. H. Willard of both Lake Salt City, plaintiffs. Parker, Atty. Gen.,
Geo. P. Smith, and Geo. H. R. B. Porter, Farr, City, and Hal all W. of Salt Lake for defen- dants.
STRAUP, J. application An was filed Lorenza Diaz and Esther against Diaz before the Industrial Commission the Tintic Mining Company, employer, Standard and the Conti- Casualty Company, nental carrier, its insurance for com- pensation Cipriana death alleged for the of Diaz. It was Cipriana employee Diaz mining was an of the company, and that in employment course accidentally he was in- jured by being caught between two mine cars and struck injuries in the days chest from which he died four thereafter surviving Diaz, and left him Lorenza wife, and Esther Diaz, years age, a minor about fifteen granddaughter wife, of his family but a member of the of the deceased. The commission found all the issues in appli- favor of the cants; injured that the deceased was in the course of his employment; that his death was injuries the result family alleged by relations as applicants, but they that found at the living time separate death were apart deceased, and hence dependents, were not ground and on and, no other compensation; denied provided, as the statute in such case made and Laws Utah mining 1921, 67, company c. ordered and its in- pay carrier into the State Insurance surance Fund sum substantially $1,000. denying compen- From the order applicants they prosecute to the this sation review of the proceedings and seek an annulment of order. The whole proceedings the record of all of before the com- certified transmitted to us. It conten- mission is is the applicants that on the tion record the evidence without dispute meaning shows within the substantial dependents, ought Act the Industrial that an award have in their favor. been made statute, Comp. 3140, 1917, Laws Utah amended § provides Laws c. that: Utah *3 following persons presumed wholly dependent “The shall be support upon employee: a for deceased “(a) upon A a husband with whom at the time wife she lives of his death. eighteen “(b) age children under the of A female child or female * * * upon parent living he is at the time of the with whom the parent. of
death such dependency, part, question cases, in whole or in “In all of other particular in accordance with the facts each be determined shall resulting existing of death such case at the time of dependent person employee, as unless a shall be considered but employee,” family etc. the deceased member of the of Cali- Diaz married in The Lorenza deceased and marriage put June, The of was fornia in 1915. certificate granddaughter Esther, a then an infant and evidence. became, wife, the deceased and until death of the treated, family supported, was, and his a member of though regarded by own child. she been his him as and couple wife to reside husband and continued The married years, when for two together in California about live and Utah, they Delta, resided and lived they where moved years, during the de- together which time for four about fields, employed in beet in a time was ceased most work, factory, receiving other about sugar $4.50 did and day by support was used him in the which and maintenance his Esther and of himself. wife and Witnesses who knew Delta them at testified that the deceased and his wife lived together happily and seemed to be attached and devoted to part kept each other. The wife of the time at Delta a sort boarding boarders, proceeds house took family. also were used the maintenance From parties Dividend, Utah, Delta the went to where the deceased employed by mining company, defendant and where dispute together without lived as husband and wife for years, about another four a half Esther all and the time living family, being sup- with them as a member of the and maintained, ported, and sent to school deceased. Part time kept of such the wife also took in boarders or a sort boarding house at Dividend. Witnesses also testified during period the deceased and his wife lived to- gether happily regarded treated and each other with far, So affection kindness. there is no substantial dis- pute evidence, except in the there was some evidence to stepson, show deceased son of the wife marriage, disagreements, former at times had some complaint was made that some the deceased because money wife used some her mother. employment May, left deceased at Dividend in quarters 1926. About a month took up before that he mining company slept, the bunkhouse of where he *4 generally home, during boarded elsewhere than at his but occupied paid by he the rent for the that time house employment The testified he left the wife. wife went and Butte, Mont., testimony to look work as to a miner. No given by employer by any or was one as to whether voluntarily employment, deceased was laid off left except employer’s that, that caretaker testified while occupying quarters bunkhouse, at the the deceased was he that, got camp him “I have to stated to leave this or I will man.” The witness was kill that and asked answered: “Q. Q. man? A. The man that What ruined his home. A. man was that? Another man What used to be around why that bunkhouse, his house and he moved to I language suppose.” to the man referred to language of was the deceased witness and not that of the deceased. witness, deputy sheriff,
Another testified that the de- spring having ceased told him the 1926 that “he trouble; family trying he said that there was another man wife,” going come in he and his to between and that he was to he leave because did want trouble with “this that, Another witness testified fellow.” while the deceased hospital seriously ill, his last illness was at the and he notified, was asked if he desired to have his wife and not, good.” testimony said that “she was no All such objections received evidence ap- over counsel for plicants. that
The wife testified there was no her- trouble between deceased, except quarrels self and little as heretofore stated, together she and that the deceased had lived happily. In she that was corroborated other witnesses living at Dividend. She testified further when Dividend, separation deceased left there was no or sever- family relation; May 24, 1926, ance he left about go miner, only part to seek Butte work as and there employed time was miner. The as a deceased returned to July, 1927, part Dividend June and in the latter again July year employ entered of the Tintic Mining Company. July August, 1926, In Standard while Butte, the deceased was in the wife minor left child Virginia City, Dividend and went to Nev. From there mother, gone California, her who had visited and then Bingham Canyon, Utah, May, she the child went to about She testified that when her 1927. husband was Butte moneys him, three or four letters she received write, she wrote letters him. and that Neither could others write for them. In she each had was corrobo- granddaughter, then her who was about' fourteen rated *5 age,
years and a witness who testified that at Butte wife, letters for deceased to deceased’s he wrote sending in some them mention was made and money in her. The wife testified that one of the letters to Virginia City requested her her at the deceased to written Canyon go Bingham what to see she there to could do opening boarding house, acquiring and that towards her mother in California and response thereto she visited May, Bingham in 1927. She further testi- then went Dividend, that, after the deceased returned to she there fied him, on occasions visited and he week-ends vis- on several gave Bingham, her that on he ited at such occasions money child; and that her of herself shortly by him November on the last visit made before his get contemplated it them if he was could death employment Bingham, at Divi- he would leave his work go Bingham. Other witnesses testified that dend and the wife at after her had re- saw Dividend husband accompanied turned, witness that de- another he way way Bing- part the deceased was on his ceased when ham. 16, September that on she
The wife further testified City attending celebration, Mexican Lake Salt stopped she met her that on that occasion husband and with friends, gave such he him at house of on visit witnesses testified to her Other the same circum- $140. gave and that deceased on such her stance occasion of the witnesses testified that he saw One the de- $140. City, thought, evening ceased in Salt Lake on the pay mining September company 15. The roll of evidence, put that the shows deceased at Dividend eight night hour at the mine on shifts worked from the 8th September, inclusive, both to the 17th of but did not argued the 18th. From that on that the work deceased City or 16th on the 15th could have been Salt Lake night nights time and at the same work shifts on the testimony given days, and that hence the wife *6 that the in City and her witnesses deceased was Salt Lake days true, was not and it on those therefore was true not given her on that he had such occasion. No witness $140 days question on either of in that the testified the deceased or days was seen at Dividend that on either of such Dividend, except pay at as shown roll of employer night days. he worked that shifts on such applicants testimony It is the contention of the deputy of the caretaker and of the sheriff and statement hospital or declaration made deceased with respect hearsay to his wife incompetent, and, were determining sufficiency of the evidence to finding question denying and the compensation order disregarded by should be us and the determination made upon competent alone evidence adduced the cause. think evidence hearsay We referred to was and incom- petent. It is clear such statements or declarations of the any theory were agency. deceased inadmissible Just they is as clear were inadmissible as admissions of a party privity to a cause or of one through with or or under party whom to the based record his claim or derived his right or title or of one otherwise identified in interest. Nor were such statements or declarations admissible on the theory gestae. they of res Nor were admissible as declara- against tions interest of one since deceased. To render declarations against admissible evidence as declarations interest, it, among things, other was essenetial to show that they against pecuniary when made were pro- either a prietary interest. It clear the declarations were not against any such interest or that were even dis- serving. They self-serving. rather Had the deceased against declared made statement adverse to or his interest as to manner in which he injury, received his tending some statement or declaration to show his had not of or in the arisen out employment, course disability wholly or that due to an ailment or an way in no affliction attributable to an accident or to his deciding ques let it be assumed without employment, might tion, such a declaration statement be re against pecuniary interest, the declarant’s garded compensation injury, claimed for his had he lived and right tend to a declaration would affect his recover against compensation. the declarations here were But *7 And, proprietary pecuniary interest. in the ab- or either a subject, firmly a statute on the the rule is estab of sense England country this and in that the in in declaration lished against pecuni case, must be either a to be admissible such ary Hanson, 171, 34 proprietary interest. Utah or Smith v. Chamberlayne 1087, (N. S.) 520; 18 R. A. 4 on 96 P. L. Evidence, seq.; 441; Encyc. 1 4 2774 et Elliott on Ev. § § of 87-89. Ev. against may pecuniary
A statement be to be a interest said pecuniary property when it tends to of lessen the value of responsi- imposes upon pecuniary or the declarant a him bility against proprietary it and is a when tends to interest upon ownership Elliott, property. 1 doubt cast of supra. here In sense did declarations lessen or af- pecuniary property fect value of of the declarant or they upon impose any pecuniary responsibility him nc-’ did upon ownership property. cast doubt of says Jones, interesting problem,” “An in 2 the author (2d Ed.) on in Commentaries Ev. arisen actions has § wrongful brought damages by for death act recover in where some instances of the declarations deceased were author, in on received evidence behalf of the defendant. however, says that each case must be examined so generalization,” “under statements of the deceased gestae “forming part may the res be confounded Tiffany independent He declarations.” cited on Death with Wrongful by Act, there 194. It is said: § of the in “Whether declarations deceased are admissible favor plaintiff depend will on whether of the were made under such part gestae. as of the circumstances to form res It would seem part declarations, gestae, that such if not admissible as of the res admissions, as are in favor defendant since not admissible right plaintiff not claim in the the de- in such case does action; point ceased, upon de- but new cause but has been negative” citing cided both in the affirmative and cases. — Thompson Negligence, cited, also where § party against is said that admissions of his interest are competent negligence cases, cases as other subsequently an in the case one admission deceased that negligence an accident was caused his own or fault against admissible dam administrator action for ages practice caused his death under the Ohio of which a are number cases cited from the Ohio court. Other eases where in found such actions declara accident, deceased, tions of that he was to blame for the fault, disserving that it was his other state adverse ment injury, made him to the re cause of the However, ceived in evidence on behalf the defendant. there are a cases such where in actions number *8 leading kind of held A declarations were inadmissible. case 197, subject City Raleigh, on the is Dowell v. N. C. 173 of 849, holding 91 S. E. 850. In were such declarations there, among inadmissible, the court that: things, other said “The of cause action arose the death the never until him, intestate, desig then not those and but to who are by They nated statute take the recovered. ac the fund quire by alone, any right the the statute not because privity intestate, them, with the for none such exists between any proper are sense of term.” To the same effect Leslie, 305, City the 112 cases of Kansas R. Co. Ark. So. v. 83, 1915B, 834; Reissinger, 167 S. W. Ann. Marks Cas. v. 44, 243; App. Eldridge 35 Barton, Cal. 169 P. Mass. v. 232 183, 272; etc., Louisville, Berry, 122 N. E. R. 9 Ind. Co. v. App. 63, 565, 35 N. E. N. 36 E. 646. and do now
We need not not decide which of rules these greater by weight or sustained the is better rule the one authority, for that the declarations here made were against interest, certainly no sense declarations not 86 any
against pecuniary proprietary or interest. As some analogous here, reference also be made to cases what compensation employee held that under where it is acts by person with other cannot his own settlement release right compensation under the act to on account his wife’s death, right for that is her benefit and not for employee. Cripp Case, of the 216 Mass. the benefit 586, 565, 1915B, Ann. Cas. 828. 104 N. E. To that effect Co., 155, 98 Berlin Const. Conn. 105 also are Jackson v. A. Goodyear Davis, 557, 282, 326; 114 Kan. 220 P. 39 A. L. v. R. 563. opinion testimony thus are of the that the
We as to hearsay declarations or statements deceased was determining question incompetent, of suf- support finding ficiency the evidence to the com- applicants dependents, mission that the or whether evidence, finding against justified such is we are not considering testimony and should .as we disre- do way urged gard by But it in a it. defendants that the determining question dependency commission right testimony, to consider such and that under the (Comp. 1917, 3149) Laws Utah statute commission § statutory the usual common-law not bound rules any pro- technical formal of evidence rules of provided,” support “other than as the act etc. In cedure v. Smelting Comm., of that the cases of Co. Ind. Garfield v. 57, 63, Comm., 53 Utah P. 178 Ind. Rockefeller Utah, 124, P. are cited. The cases do not contention the extent claimed. In the Gar- is made Case statement the commission field in its investigations may hearsay evidence, have recourse to but *9 emphatic language at the same time the court most also findings every finding “Yet when it makes its said: of fact legal competent be based on some substantial must and In the Rockefeller Case it evidence.” was held the com- paid mission there no attention to the “rule laid down in Case,” receiving hearsay and the Garfield evidence witnesses, “went mere conclusions of the and commission Certainly far the rule stated the Garfield Case. outside” the neither statute nor such decisions was it intended receiving considering the commission in and evidence liberty statutory disregard was at the common-law or adopt evidence those Latin countries. While rules of and granting denying or orders or awards will not be reversed findings rulings nor aside annuled set because receiving though incompetent it commission evidence findings, yet harmful effect have influenced and jurisdiction established, firmly the in this is and was rule to, just followed before and since the decisions referred sufficiency determining support the of evidence finding granting denying material order or an or an award finding against evidence, or order all whether or is incompetent disregarded by and evidence is us the determi- competent and, evidence; if a nation made on the alone finding supported by against material not sufficient is or is legal evidence, disapproved competent it set will be aside. considering by eliminating incompetent,
Thus evidence, competent, the case? That alone how stands parties lived were married and as husband wife during years, together all of time for about eleven applicants, supported deceased and maintained dependent upon him for and that years four and a half of which the deceased maintenance employ company, disputed. in the defendant together having indisputably shown, been a relation Such showing indisputable appli- that neither the further with prior to time of or the death the deceased cant any any property, income of kind other than or had labors, requires something more than own from their family suspicion conjecture that such relation mere prior status at some time presumed continued had so been severed of the deceased abandoned death finding justify changed deceased *10 legal obligation abandoned his and moral support applicants, they acquiesced maintain the therein, and longer support looked to him for and maintenance and expected none, occurred, had the death not none expected, requested, would have been or received. Such justified conclusion parties is not from the mere fact that the death, year at the time of the for prior a or more there- to, actually together had not lived in the same house sense, in the legal town even same state. aIn and within meaning statute, husband wife well regarded living together, though, employ- because of ment, engagements, convenience, they living or mutual are apart Pennsylvania from each other. pro- The statute of compensation payable vided that “no shall be under this sec- living tion a widow unless she was with her deceased husband at actually the time of death or was then de- pendent upon support.” considering it, him' for In Supreme Pennsylvania Court Creasy in the case of v. Co., Phoenix Utilities 276 Pa. 120 A. held that* separation merely where the for the mutual convenience parties, dependent, obligation and the wife is and the recognized her is either performed, the mere husband, any reason, fact that the perform fails to duty time, deprive for a does the wife her status as dependent. so, If this were not separa- mere fact of tion, though perhaps proper legitimate for a purpose, such as the home, would, future establishment of a new cases, family. all bar a claim on behalf of the That it was Legislature not the intention of the to establish such a harsh amply proven by rule seems the fact that “de- word pendent” used, right than rather make the of the widow depend upon receiving support the fact at the time of character, the accident. criterion in cases this con- sequently, wife, must be whether or not a living apart from dependent upon him, actually her husband and but not re- him, ceiving support acquiesced has in his action under amounting repudiation by circumstances him *11 obligation family. legal support To the same effect 179, following are the cases: Coletrane v. Ott. 86 W. Va. 102; Foundry Coffee, E. 103 S. Muncie & Mach. v. Co. 405, App. 524; Republic Iron 66 Ind. N. E. Johnson 117 v. Co., 149, 44; City & 212 Ala. 102 Malleable Steel So. Belle 293, 174 Rowland, 899, A. L. Iron Co. v. 170 Wis. N. W. 7 R. 1071; Geytko Pittsburgh Co., Super. v. & E. 88 Coal Pa. 522; Philadelphia Co., Reading Shimkus v. & & Iron Ct. Coal 88, 335; Comm., 280 Pa. 124 A. Landsrath Acc. v. Ind. App. 509, P. In to and annotations *12 Comm., Smelting
In Ind. American & Co. v. 68 Ref. dependent, 383, 651, Utah where the was held a 250 wife P. it was observed that the mere fact contributions from her husband have ceased for a considerable time was family not he conclusive that abandoned his and left had Utah-Apex to shift In them for themselves. the case Comm., 1078, Min. Ind. it 221, Co. v. Utah was 64 228 P. that, husband, apart where wife lived from the held support he for over and had not contributed to her where years prior death, dependent; she not a but four to his was support appeared it there she had made no effort to obtain whereabouts, him, not would from that she did know and any support not have exacted from him had she known sup was, expected to where he and had not the deceased Comm., Apex port Min. Ind. her. In case of Utah Co. v. it also was held that the wife was 656, 244 P. 66 Utah peculiar dependent of the shown in that not a because facts October, parties in Idaho in were married case. There together They time. He not but short had lived 1918. marriage. during any In the supported her time Army, City join following Lake to spring he to Salt went wife, The maintain her was let out. to in a few months but shops self, and confectionaries in work in railroad went to Kansas, to where in Idaho. In she went several towns she canvassing support and where herself did she O tH years. early spring for about two In lived Price, Utah, supported she went there also her- canvassing. Lake self deceased died in The Salt Utah, May, County, parties separate 1924. thus lived apart prior years for three four death During all that no deceased. time communications had them no made her to locate between effort They ascertain the whereabouts her husband. in effect strangers ex- lived as neither had not each other. She pected any him, and maintained herself from died, though had not been married. husband she When the August, 1924, dependent applied as the sole mother for, October, awarded, compensation. Not March, 1925, compen- until did wife make for claim compensation sation. was denied because she at She deceased; supported during time was all years separated in which she him had not ivas she support, expected any, to him for had re- looked not none, whereabouts, quested did not know his made no even was, ascertain and thus it in effect was effort to where probable to infer or reasonable held lived, any support have had the husband she would received from him. the two last cited in this case are
The facts in cases together strikingly parties dissimilar. Here the lived *13 during years, applicants all time the looked eleven of which sup- maintenance, support to the deceased ported by left him. When the deceased and maintained Butte, compe- to and went there is no substantial Dividend justify to show an inference that such tent evidence nor to family relation was not to continue mutual con- changed longer was sent it was so deceased no sup- legal obligation required perform to to and moral longer sup- port applicants, they or that were to be longer ported by him, expected support or no to receive him, required and that thence on to from from w'ere from shift for themselves without aid the deceased. We anything justify any do see in the record to such infer- justified, ence or conclusion. None such is because parties apart year lived from each other for about a and a half, year about one of which the was in Butte. deceased Further, during the evidence shows that in time he was corresponded other, Butte he and wife each with moneys him, and, that she received when he returned Dividend, they other, each visited such occasions and on gave money her he also for the and of the herself upon minor child. That evidence does not rest alone testimony testimony respect of the wife. Her in such corroborated, particulars, disputed at least most and is not except as to the occasion when the wife and the witnesses City testified she met her Lake at a Mexi- husband Salt $140, gave can celebration and that then here and dis- only puted pay employer as roll heretofore indicated. argued
It of
the commission
not re-
course is
quired
testimony
of the wife
to the cor-
believe
respondence
husband,
between her and her
the visits had be-
tween them after his return from Butte and as to the
him, though
moneys
by her from
received
corroborated
Certainty, great
is
the main
other witnesses.
latitude
determining
possessed
and accorded the commission
weight
given
credibility
their
witnesses and the
to be
reason,
testimony; but,
being founded in
is not an
the rule
duty
or an inflexible one. The commission was in
absolute
fairly
impartially consider all the evidence re-
bound
issue,
single
permitted
lating
and was not
to a material
give
weight
it and
undue
to the exclu-
portion of
it
out some
equal importance.
par-
If in some
sion
other evidence
conflict,
duty
apparent
is the
ticulars evidence
if that
to reconcile the evidence
be done
the commission
testimony. consistently
truthfulness of the
with.the
disregard
arbitrarily
capriciously
may not
commission
testimony.
the commission
When
or disbelieve
evidence
witness,
testimony
there must be
some
disbelieves
*14
apparent
respects
reason therefor.
rule in such
Comm.,
Rukavina
the case
v. Ind.
stated
68 Utah
1103.
248 P.
Because a witness has a
the
direct interest
litigation
course,
ais matter of
'be considered
deter
mining
weight
given
testimony,
the
to be
not
his
but does
justify disregard
disbelieving
of itself
or
and
his testi
mony.
something
justi
There must
addition thereto to
fy
rejection
Littauer,
it.
a disbelief or
Hull
162 N. Y.
v.
569,
Further, proposition still in- more conclusive is the parties indisputably as it for asmuch was shown that years together wife, and eleven had as husband lived dependent upon the for she and the minor child deceased during supported support, of that all time were by him, any during maintained and that neither at time any marriage property in- now have do any though support, par- come of their own or means of time, more, apart year ties for considerable for lived living apart showing each other without that such from again marriage of the relation and not was a discontinuance or was under where the wife to be resumed circumstances family fault husband of the had abandoned the without relation, during period sup- though no she received port deceased, she and the minor from nevertheless meaning dependents, child statute within deceased, they, receiving support in not unless amounting to under acquiesced in action circumstances family obligation legal repudiation of his longer looking support, applicants him for and the Eliminating appear. the in- made to none of which here separa- aught appear, evidence, made to competent merely temporary for their own parties was tion of the temporary sepa- requiring conditions under convenience fact, circumstances, if it Under such ration.
fact, the year that wife and children for a prior to more the him, death of deceased received no would justify finding dependents not a that were not under compensation. the statute not and entitled to Let not it pushed rights minimized nor aside dependents that the of the specified in the statute were created for in- their benefit dependently rights employee, of the of the so and as the teach, they may charge, authorities public not become and rights them, clearly such should not be denied unless for- abrogated by feited or them.
Thus, regarded whether the falling case be within sub- (a) (b) to, division of the statute referred we are of the opinion finding that the dependents that there were no is against contrary legal competent to the evidence in the case, disapproved hence is and set aside. point urged by They by is the
There another defendants. cross-assignments that, regardless question contend dependency, denying of the order af- award should be legal ground competent firmed on evidence is in- finding to sufficient sustain that the deceased sustained any injury employment in the course of his the death from, injury. respect issue, to such resulted With there hearsay some evidence which we exclude and do consider. p. It is 9' shown that about o’clock m. on November deceased, engaged underground as a mucker in mining, reported mining company, to the shift boss chest, pain stating complained in his he caught moving been between two mine cars and asked He had an abrasion or contusion on the medicine. chest. wound, put boss on the shift mercurochrome de- back to work. At about ceased went two hours thereafter again reported complaining pain, he the shift boss still boss, sent the surface and was the shift with directions attending report physician company that he day attending physician next at the mine. He City, hospital sent to a at Salt Lake where December died, being pneumonia. Bd cause death immediate statute, employer required Under make report injuries file with the commission of all accidental employees arising out or in the course of their em ployment. 3,1927, mining On December the defendant com pany made, filed, and on report December 5th with wherein, among things, the commission other it was stated *16 employ, that injured deceased was in its he that was engaged November underground 29th while as mucker in mining by caught being moving his chest between two mine cars, injury and that the extent of the was a contusion and day, abrasion of the lower left chest. On the same De 3d, attending physician cember also made a similar re port commission, to the with the statement the em ployee day hospital the next was sent to Lake Salt City, developed pneumonia and that “this man as soon after reports objection discontinued work.” These without put were in evidence. A report further statement or company put evidence, also was which shows that the July 23, 1927, from deceased after he had returned from up 29th, Butte and steady worker, to November was a “and so far as we was know not off work due to sickness.” Such company statements or admissions of the defendant are finding alone sufficient to sustain the the commission injury the deceased sustained an employment. in the course of his v. Lewis et al., App. Cra 437, ciola 233 253 Div. Anthus v. Rail Joint 752; Co., App. N. Y. S. 571, 193 Div. 314; Id., 557, 887; 185 N. Y. S. 231 N. Y. 132 N. E. v. Amsterdam Bldg. Co., Lanni App. 278, 217 Div. 216 Co. v. 763; Hege Tomkins, N. Y. S. & App. 69 Ind. Peterson v. 677; Richards,
121 N. E. 73 Utah P. 229. The admissions so made fact or of law or of mixed competency relevancy fact and law. The of them cannot n beaffected question party making whether the them personal knowledge merely information as to the fact just admitted. The New York cases cited.
There is some conflict the evidence as to whether the injury contributory was the direct or a cause of the death. days There was evidence to show that the deceased several prior injury cold, coughed some, to the suffered from a complained sick, being every day up worked but injury. autopsy any time of The did not disclose injury any organs. opinions the internal Different expressed expert medical witnesses as whether pneumonia, death, which was the direct cause at- was injury. attending physician tributable to at the mine testified that he had treated the deceased for a cold injury, fully some time before the but that he had recovered ailment. He further testified when he first injury, examined the deceased on the 29th after the he did sign symptom pneumonia, not discover definite but day, next did so on the and then sent deceased to the hospital. up The shift testified that time of boss to the injury deceased, see, far so as he could able to work, complaint do his that no made the deceased injury. until after the think We there sufficient evidence justify finding pneumonia resulted from the injury, contributing or at least that the was a cause. *17 denying compensation aside,
The order is thus set and the proceedings. cause remanded to the commission for further HANSEN, ELIAS J.
I, too, think the made Industrial ward Commission be should annulled. proceeding question
In this defendants raise the sufficiency finding support the evidence to Cipriana Diaz died commission wherein it was found that employed as the result of an received he while Mining Company. the Tintic I am of Standard finding opinion that the evidence does not complained thus the defendants. evidence touching Cipriana the cause of in sub- the death of Diaz is stance as follows: P. 0. Pearson testified that on November 28th, day before it is Diaz received his claimed Mr. injury, laundry. he his That came Mr. Pearson for indicating here, that time Mr. Diaz he was sick in said chest; carry lower that he could laundry not down track, the railroad yards. distance of about 200 Victorei de Elizondo testified that the deceased hoarded with her at injured. the time days he was That about three before he injured was feeling her he told was sick. Bruno Elizondo days testified that about two or three before Diaz Mr. injured feeling he told him he was sick. Serafín Corral testified that he days saw Mr. Diaz in his bunkhouse two injured, before he was appear that he did to be sick. A. A. Wetterstrom testified that he was the shift Mining foreman of Tintic Company charge Standard of the shift on which Mr. Diaz worked. That on November 20th, evening, 9 o’clock in about Mr. Diaz came to him (Mr. Wetterstrom), (Diaz) caught and stated that he squeezed, between two cars and and that he wanted some medicine. He had little scratch on the left side near the chast line another on the left side near shoulder. applied That Mr. Wetterstrom some mercurochrome to the abrasion, away apparently and Mr. Diaz went satisfied. at about 11 Mr. Diaz That o’clock came to Mr. Wetterstrom again, pain. appeared and said that he was That he pain. Diaz That Mr. was then sent out of the mine report Callaghan. and was told to to Dr. A. E. Mr. Wetter- report that he made a written strom testified to the de- mining company, report fendant but the was not offered report made a Mr. Wetterstrom later to the com- evidence. mission, which reads as follows: night on the of November “Diaz came to me about 9:00 o’clock jammed 29th, 1927, that he had been between two cars. and claimed just put slight hip. I left side above the He had a scratch on his then on the scratch and he was satisfied. He some mecurochrome *18 pushing cars as usual. At about 11:00 o’clock to work
went back complained pain in left chest and on the me and of he came to him to the surface to Dr. Calla- so I sent his left shoulder back of ghan. my opinion Diaz hurt.” at the time that was not It was during the time testified that further Mr. Wetterstrom frequently complained working he at the mine Diaz was coughing pain. He was more less some kind of about time, appeared all the his usual condition injured. he time he claimed was health before Callaghan A. E. testified that he treated Diaz Dr. Mr. midnight day following alleged is to have about he been injured; Mr. that that time Diaz a small abrasion had chest; temperature niple over left he had a near that hundred; pleurisy a there was evidence a of over lungs, particularly the bases both over the over lower lung; that part the left he showed evidence what moisture; trouble, probably infection in the called he had indicating lung, pleurisy; on a condition of the follow- lungs ing day “I made examination of his had he Callaghan pneumonia.” Dr. further evidence of definite injuries that minor such as he Diaz testified found Mr. tendency opinion, aggra- not in his cause would have change incipient pneumonia; of an the course vate pneumonia develop opinion Mr. started to Diaz some first the doctor. Dr. few hours before he was examined Callaghan report made to the Industrial Commission in working injured Diaz he Mr. “while stated that caught underground; two man’s chest was between bodies mining moving company, by cars.” The defendant of two' secretary report to the commission. made a similar its Mr. Diaz was the afternoon of November 30th taken
On Holy City. Hospital at He Cross Salt Lake arrived to the p. hospital at m. Martin C. 7:30 Dr. Lindem at the about hospital. during time he was Dr. him attended very Mr. Diaz was sick when ar- testified that Lindem 103.2, hospital; temperature that he had a at the rived cough, complained Fahrenheit, pulse 110, hacking chest; pain suffering in his left that he was of severe very superficial pneumonia; that he had “a abra- influenza through layers I skin and outer should sion judge of the area be about the that the diameter would size piece; thickly ap- 10 cent there was mercurochrome of a make one plied the skin of the area which would think *19 larger, was abrasion but the abrasion was confined solitary spot.” a small Mr. Diaz died December 3d at 4:30 m., p. days three he Holy after was received Cross Hospital; day autopsy that the after death per- his an was body Calonge. on They formed Drs. Lindem and slight both testified that there were abrasions the skin chest, on the side of left but that a careful examination outer surface ribs and the ribs did dis- any opposite skin; close contusions the abrasion of the any injury no there was evidence of internal injury claim that the deceased has an sustained Calonge left chest. When Dr. was whether asked opinion the abrasions found on the skin could have con- any way Diaz, tributed in to the death of Mr. he testified: superficial. insignificant “These abrasions were en- and so insignificant tirely that it borders the ridiculous con- They things sider them. were minor that could be caused finger They way a man’s nails. no affected tissues There any underneath. evidence whatsoever of con- might tusions beneath these A man abraisions. turn him- sheet, body finger self over scratch his with his nails way that would result in so-called abrasions.” Calonge Dr. further an testified before can pneumonia, cause or contribute to it in- must be jury lungs as to leave some evidence of force either on the overlying lungs. diagnosis, “My or the tissues to sum brief, up plain absolutely positive case of pneumonia contributory influenza with the factor well degenerative changes defined advanced in arterial vasicals say syphilis. contributory, simple I for the reason pneumonia arterial proba- disease increases the of fatal bilities result.” testimony of Dr. Lindem was to the same effect Calonge. expressed opinion
that of Dr. Each injuries body found on the Mr. Diaz did not and could pneumonia not have caused contributed to the influenza from which died. *20 L.
Oft December Drs. L. Daines and R. B. request Diaz, Stevens, performed autopsy at the of Mrs. body they on the Mr. Diaz. Dr. Daines of testified that body light fairly on the of deceased several found abdomen; the chest and also the recent abrasions over that part they mostly the lower of the were on chest left abdomen; merely upper super- that these excoriations were very ; superficial, “the ficial abrasions that abrasions were just They deep scratches had little there. No ones. been they painted apparently with mercurochrome and did not very appeal being deep abrasions, just superficial us to as Dr. Daines further testified scratches excoriations.” injury any body of that find evidence on the did not abrasions, superficial and that Mr. Diaz other than the of scratching could have been caused abrasions found length finger nails; of the with the that because of time autopsy elapsed death of Mr. Diaz that between the body impossible as to whether the tissue it was to tell injured. had not been testimony regard Stevens to what was The of Dr. with autopsy body performing Mr. Diaz of the found testimony Dr. Several is to same effect as the Daines. hypothetical questions asked Daines and Stev- of Drs. following questions typical asked and ens. are testifying: given, answers Dr. Daines you “Q. you anything discovered there that Was there way, say, the force of the in a remate as would be able to even A. It might produced or bruises? these abrasions trauma that have injury very because severe to determine that would be difficult may the skin. at times not break pneumonia may “Q. (Diaz) had a have us Let assume that 1927; November, day working then germ on the 29th he was you you vicinity saw the indicated where he receives a trauma there would be you say that, abrasions; reason would pneumonia would tendency so that his resistance to lower his degree aggravated would than upon extent him to more come depend upon have would A. I think that be the case? otherwise think, however, severity I was, of it. the amount of trauma there possibility there is sufficiently of severe trauma to lower resistance bring pneumonia on in this case. “Q. day November, Assume 29th he had received this injury, crushing injury this been, whatever it have a trauma you of some kind to the chest. Can associate the and his con- dition, injury? Assuming the assumed that is a fact that tendency would have a to create a condition of that I character? A. say I am sure post could not mortem, from the I evidence saw at enough injury we could produce state there had been there to lower- ing actually pneumonia, resistance sufficient cause “Q. (Diaz) caught Assume he in between two mine cars Mine, working particular day, Tintic Standard there on this day caught 29th of November. He between the mine two *21 might crushing may injury; cars and received what we call a there any any broken; may not have been ribs there not have been other organs particularly disturbed, might that is far as a as break concerned, crushing injury. particular type but that it was a That injury, you tendency of think, don’t a would have to accelerate pneumonia a condition of that I have existed? A. think there possibility; my judgment ais that is best on that. “Q. speak probabilities? Yes, probably We could of I A. it think could. Q. might say probability power You is it lowered resist- his of germ very rapidly ance and that that would work under those cir- probability cumstances? A. I think is there. there a “Q. Assuming injured this man that was in the Tintic Standard day November, 1927, Mine on 29th of Decem- and that he died on 3rd; investigation you conducted, autopsy ber and from that say you performed together you Stevens, that with Dr. would what pneumonia prior as to to or whether not that had commenced * * * subsequent day you November, 1927, say? to the 29th of if can began say pneumonia I No- A. we cannot that that after think vember 29th. “Q. lung Suppose germ present prior that in the to this this was injury time an force cause then received sufficient you performing apparent abrasions which at the time autopsy; you say that, Doctor, your opinion, then this wouldn’t materially condition, pneumonia the trauma to his his contributed brobability my opinion trauma In is a that condition? A. there pneumonia. did contribute to the possibly, present “Q. was, the condition that And accelerated * * * Yes, A. time? sir. this November, working day “Q. Assuming on the 29th he was injury character, to the some a some he received trauma when chest, day December, 1927, only period died a that he on the 3rd days your opinion trauma; a as after that as matter of fact and contributing pathologist, a that trauma was a factor to death? probability put I it a that it could be a A. would rather that there is contributing factor. “Q. problematical, A. Doctor? As to whether was or not is * * *” Yes. testifying:
Dr. Stevens “Q. Assuming you autopsy person performed that this on whom this working day in the Tintic Standard Mine on the 29th of No- injury vember, 1927, a certain traumatic on that date received way caught chest; a that he was between two mine cars as to cause a to the chest and that he died blow some kind 3, 1927, pneumonia; now, would December as result of bronchial you say in- between the traumatic that there connection jury, pneumonia Doctor, later his death? and the caused A. There could be. “Q. being probabilities connection And of there what about the you two, Doctor, it and draw between the and how would describe Associating pneumonia your conclusions in the case? A. days following injury autopsy four conditions that we found at resistance, say previous, that I that that could lower the would pneumonia injury to the extent could lower resistance already developed develop that. if it had before could “Q. Assuming, Doctor, traumatic there was severe it; this man of Some kind to chest we have described *22 alleged by cars, alleges caught mine it is two that he was between caught petitioner mine between two cars here that he was Now, assuming that, what would he to his chest. received blow injury ordinarily result, predisposing Doctor, in an cause be the your way— you own I ask to describe it of this character —and will injury relationship pneumonia? A. An to the in its effects materially resistance, enough you so would lower chest as stated already developed, develop pneumonia it would or if it had could that readily. germinating stage more aceellerate the abrasions, you merely superficial “Q. you speak mean When skin. A. A break in the that show outside? abrasions Oh, yes. “Q. A. shows the outside? And you say very the force of “Q. to tell the blow? difficult it is And Entirely A. so. That is true? injury injury crushing means an “Q. But, that if there is Yes, force, sir. it? A. doesn’t considerable “Q. No, And injury, that creats more than external doesn’t? A. always. not “Q. you blow, If had considerable force behind the wouldn’t that something you create would determine and find the interior? Usually particular A. so but in this case it was such that we could not determine that all. at “Q. injury You did not find evidence of other than ones shown on the outside? A. We could tell on account of the not previous autopsy length time; and the were tissues such impossible to tell.” hypothetical questions
There other asked similar given. questions quoted answers and answers above testimony purport are sufficient to show the of Drs. Daines and Stevens. may lawfully required
Before the pay defendants anything applicants to either the State Insurance Fund, affirmatively appear it must from the evidence that injury death Diaz Mr. was caused an which employ while in received Tintic Standard Mining Company. par- It is all of the conceded litigation ties to this that the immediate cause of pneumonia, probably pnenmonia. death was influenza If the pneumonia injury from which he died was caused working mine, which he while received at or if the de- pneumonia, ceased was afflicted with so while afflicted which, injury received such an fatal as to render the disease injury, fatal, without would have been then the de- liable, Assuming fendants are otherwise not. there is suf- competent ficient evidence in this case to show that Mr. injury working yet mine, Diaz received an while to authorize an the further burden award remained on those right compensation require or the who claimed the de- pay money fendants to into the Insurance State Fund show caused the death of Diaz. The Mr. evidence in this case shows without conflict the in- jury, any, working Mr. Diaz if received while at the *23 mine, merely skin, of injury an abrasion the such an as scratching by
might have been caused the deceased well testimony is the effect of the of Mr. himself. Such Wetter- strom, mine; Callaghan ex- foreman of the Dr. the of who mine; him when he came out of Dr. Lindem amined the of Holy Hos- him in his last the Cross who attended illness at together Calonge. who, performed an with Dr. pital, and death; body day autopsy also after his and such the testimony Calonge. testimony Drs. the Dr. The is refute, corroborate, Stevens tends to rather Daines and than testimony the of the other witnesses as the nature and injuries, any, if extent of which Mr. Diaz received while mining company. They at work for defendant did not autopsy perform days Mr. until eleven after the death of according Diaz, therefore, testimony, their it was any for them to ascertain whether difficult injured. only injury tissue had been evidences of slight found were the abrasions of the skin which by by were the other doctors and Mr. Wetter- testified Therefore, upon only permissible conclusion this strom. injuries, any, record that the if received Mr. Diaz while is mining- slight, company very working for the defendant might skin, superficial abrasions as scratches or being finger have caused a man’s been scratched Lindem, testimony Callaghan, nails. The Drs. Ca- longe injuries is to the effect that such did not and could admittedly not cause or contribute to the disease which testimony Daines cause of death. The of Dr. immediate whole, Stevens, that Dr. when considered likewise testimony not in with the other doctors. conflict hypothetical questions upon, Answers but not founded case, to, no contrary in a have established facts can probative probable effect would been the value. What have crushing upon if he Diaz received a severe Mr. alleged can be in deter- time of accident aid mining slight, probable super- was the effect of the what injuries immediately ficial skin he had after alleged main, questions hypothetical In accident. *24 Drs. upon asked Daines Stevens were not bottomed such injury as the actually evidence shows Mr. Diaz had at the fatally pneumonia, time he was stricken with and therefore questions the answers to do not raise substantial testimony. conflict in the anything Nor is there in the sur- rounding alleged injury circumstances Mr. Diaz that he shows received such an as was cal- pneumonia culated to cause which, render the disease fatal injury, without the would not have been fatal. reasons,
For opinion these I am of the the order directing pay the defendants to to the State $998.40 Insur- ance Fund should annulled.
CHERRY, C. J. I concur annulment of the award reasons stated by Mr. Justice ELIAS HANSEN.
FOLLAND, J.
I in the concur annulment of the award for the reasons by Mr. stated Justice Hansen. HANSON,
EPHRAIM J. opinion I concur written Mr. Justice Hansen. UTAH POWER & LIGHT CO. v. RICHMOND
IRR. CO. et al.
IRR.
et al.
HYRUM
CO.
v.
al.
PETERSEN et
July
(13
320.)
No. 5259. Decided
1932.
P. [2d]
77 Cal.
247
227.
notes
686,
1253,
cases in
R.
R.
35 A. L. R.
13 A. L.
30
L.A.
1066,
313,
218,
R.
references
39 A. L. R.
and 53 A. L.
subject
“Depend
may be found to numerous cases on
the
Act,” including
ency
Compensation
cases
Within Workmen’s
living
variety
of a
of circumstances where
wife was
apart
in some she was held
from
husband and where
dependent
others not.
subject,
Looking
at our own cases
we find that
on the
169,
192, 198
Comm., 58 Utah
P.
the case of Hancock v. Ind.
Act,
Compensation
was held that under our Workmen’s
rights
facts,
legal
dispute
is
as to the
when there
no
questions
proven
are
from
facts
deducible
inferable
such
law;
determining
dependent
them each case is
facts,
can
upon
and no absolute rule
be laid down.
its own
81,
McGarry
Comm.,
Ind.
63 Utah
In the case of
v.
basing
question
594,
court,
of de
P.
this
while not
obligation
employee
legal
upon
pendency alone
him, yet emphasized
depending upon
support
those
dependency.
determining
obligation as a material
factor
pressed
employee failed
There,
point
if
though legally
upon him,
obli
dependent
support
those
dependency
so,
made. This
gated
claim
could be
no
do
hold,
in
stated that
it was not
to so
declined
court
statute,
interpret
know of
“we
clined to so
during
furnishing
support
authority
which holds that
absolutely
to the establish
is
essential
deceased
the life of
ap-
dependency.”
further
The court there
of actual
ment
language
provingly quoted this
from
case Merrill v.
Co.,
Penasco Lumber
27 N. M.