*1 et al. COMMISSION HAMMOND v. INDUSTRIAL (34 687.) July 16, P. No. 5366. Decided 1934. [2d] *3 City, Jeppson, plaintiff. J. G. of for Salt Lake Joseph City Chez, Atty. Gen., Fraser, W. A. Ásst. Atty., of City, Salt Lake for defendants.
STRAUP, Chief Justice. application by An Hannah Hammond on her Giese behalf son, and of minor Hammond, our Clarence E. under Work- Compensation seq., (Comp. 1917, men’s Act Laws 3061 et § amended), was filed before Industrial Commission seeking compensation Harry for Ham- the death of Andrew mond, Among applicants. of husband father things alleged it was at the time of other deceased alleged injury employ and death Lake was Salt City, by of an the death was caused reason accident arising employment. em- out or in the course of his The ployment admitted, by was but it was denied injury by on or death was caused reason of or account arising employ- accident out of or in the of the course ment. only find- The the commission. heard before
The case was that: by review are ings pertinent Harry husband, A. alleged by applicant Ham- her “It City Corpora- by employed July 14th, 1932, Lake mond, Salt while City cleaning engaged tion, stream reservoir and while lifting strain, work, Canyon, severe reason of excessive Creek causing strained, a cardiac over-exercise, his heart muscles were July 16th, alleges 1932. collapse, in death on resulted which she was or not the decedent introduced as to whether “All the evidence hearsay. injured by accident competent applicant evidence her has failed to sustain “The Harry husband, A. proof death of her to show that burden arising Hammond, of or in the course an accident out was caused City Corporation.” employed by employment Salt Lake while his compensa- dismissed, and application therefore prosecuted this applicants have denied, tion from which ad- all the evidence upon certified to us of the record review proceedings the commission. had before duced and required 'an award. think the evidence the record we On or over compensation based on strain The claim for employment in the course exertion of the deceased collapse in an acute dilatation which resulted days causing thereafter. heart, than two death less certificate, death, in the death as stated The cause of straining cause, contributory collapse, severe “cardiac con disposed case lifting.” The commission to whether introduced as “all the evidence of law that clusion *4 hearsay,” and injured by accident is or not the deceased was by proof the burden applicant failed to sustain the by accident caused death was competent the evidence employment. Such arising of the deceased’s of the course out ap challenged by the finding on this review is or conclusion upon the undis contend plicants petitioners, who and an award. they were entitled competent puted evidence requires a understanding of the situation get To a correct particularly and to the evidence reference detailed rather bearing over- the claimed on circumstances facts and the thereof, exertion and the effect statements declarations physician the deceased to the whom visited for treatment, medical aid and and to statements and declara- wife, tions made him to his which statements and dec- city larations are asserted the and the commission to be hearsay, mere on this thus review should be excluded from consideration as was done the commission. years age.
The em- deceased was 51 He had been in the ploy city patrolman looking of the a watchman and after as supplies city for or ten reservoirs water of the nine years, Brighton Big first at at the head of is known as what Canyon years what Cottonwood and then for about three City Canyon, is known as Creek where deceased was employed By at the time of some- his death. record he Among times is referred to a “tank man.” other duties required reservoirs, weirs, he was look after and clean screens, etc, patrol portion looking canyon of the after supply city. water He and his wife lived weirs, canyon opposite nearby reservoir, in a house and screens where the and two or other men deceased three July were at work on 14. That the deceased in the em- was doing ploy of the and that the of the work in which engaged day prior thereto, on that he did and what (he following day, on the 2 o’clock on the 15th died about morning 16th), employ- in the course ment, disputed. hearing is not All that at the before commission was admitted. wife, substance, testified: prior 14th
That the claimed exertion on the deceased well, always good slept “as health, and was ate healthy July That 14th her husband and as he could be.” out reservoir and weirs three other men started to clean There were about six feet and screens near her house. reservoir, gravel, and that she mud, and other debris doing and some of the men work saw and watched feet, twenty nearby, within fifteen or outside and time was *5 72 being
where the work was done. The men had on rubber gate open, That the valves and were hard to were boots. lime, they required soaked with mud and and that were to pry open, jump them and that her husband had to and go another, out and from one and reservoir weir to required go that when the water was turned out he to below, and, level, go to a weir when the at a water was to gates again. back and fill and the tank When the shut required out of was let the reservoir the men water were gravel doing shovel and of it the mud out and so had they again work “as hard as could” before water was open gate let the first in. That time men tried they heavy stopped were unable do so. That was and lime, open with and her and that husband other men tried to gate by wheel, so, means but were to do unable “they and worked real hard at her husband it.” That continually Being open pulling the valves. unable to gate manner, they got then hus- bar. her That gate pry open it, band tried to with and was down below over, stooping punching, prying lifting bar. and and with the they put That then the bar wheel her husband pried gate loose, and two other men means during present they that time she was and saw what did.
Shortly thereafter her husband came into the house for lunch; soaking per- shirt and underwear were wet with spiration. lips That his face and were a little That blue. pried right, he did not look and stated that when he pulled opening gate felt a strike him on the every jumped chest, and that time he and down to the out pain. lower tank he in intense That he rested a little quit while and then went back to work at about o’clock. anything He supper. did not eat much of That he went much, early. sleep to bed a little That he did not tossed about, “pawed” (raising hands with his most of the time complained pawing his arms and down in a fashion) *6 pain pit of in the chest and in the stomach. The next morning, 15th, which was on the he felt worse. In fore- noon he nearby. undertook to cut some weeds witness cutting cutting saw him them. While the weeds he raised up, stating “got pain he a and was of breath and was short perspiring all the time.” He went in the house and rested. noon, He anything did not eat at and in the afternoon he “patrol stated that he canyon maybe would down the pain might pass halfway off.” He went down about came back and stated “the knocked me down on ground,” stay and that to he had a little while before he could get got back, back. terrible, When he “he color looked his looked lips blue,” kind bluish and the were all and that he was short of pain. breath in At 3 oiclock she telephone town, called Dr. Andersen down and at 4 o’clock she took her husband office where the doctor doctor’s him, gave prescription, examined a him and sent home him prepared supper bed. evening, She for her husband that anything. but he did not eat early, He retired but rather slept little, breath, pawed was short of all the with time hands, complained increasing pain, and, though windows and doors all open, complained were he of want of air, gasped breath, was short of night for and died that at morning. about prior o’clock That to her husband engaging in the work at the reservoir he short of That, Brighton breath. when was at where the altitude high; he went looking from lake to lake after the supply any water difficulty being without and without short breath, and that complained he was not short of breath or doing ailment whatever in City his work Creek Canyon. She was asked and she answered: “Q. you Dou know whether he suffered from shortness breath? A. No. “Q. fatigue (when walking Brigh- Or these walks he was ton) speaking No, I am A. of? never been bothered with that.
“Q. He a heart murmur had sometime before his death did he A. not? Yes. any way? “Q. No, A. I never knew him in Did that ever distress always healthy man, thing, and it he was had because such way. me he went shock “Q. he had distress? A. No.” You didn’t know such
(When him he some murmur doctor examined found presently will apex heart reference at the which made.) at the with the deceased workmen worked One who * 14th, substance, testified: on the reservoir *7 feet of dirt in the bottom five and six There were between day by four out that was all moved of the reservoir which deceased; doing including there were the that that men passing that the was fourteen-minute intervals water about they let through weir; the that had lower valves the getting air up pipes keep from small weir fill the the letting liable to break air in the mains was in them and that gate get in they required them; to raise the that were again which took let them fill the tanks and then and clean opening minutes; they difficulty in that had about fifteen cleaning bot- the in the extreme out valve the washout reservoir; were corroded that the valve slides tom of then opened hand; the deceased and could not gate, opened put got in the wheel and he bar which bar; doing that hard prying pushing on the gate opened then work, after the first time but wheel; it was opened at and closed hand could be it; at most of the time was one of the men hard work to start us, including deceased, weir; tried other “all three budge open gate unable to it and then we were but bar; completely got soaked his shirt the deceased evening pretty we all well perspiration; were with department Young fagged out”; the water drove a Mr. from getting along when the deceased we were and asked how job.” “Pretty good, chair- replied, it’s one hell of a but anything the witness if he saw man the commission asked himself, had hurt to which the that the deceased to indicate witness answered that he could not I tell “because don’t know”; complaint that the deceased made no and made no feeling bad; remarks of say anything; that he did not pretty good, just seemed to be about the same as when they morning. started in the The chairman of the commis- sion witness, you quit further asked the “When work what (deceased) say? job. did A. He said it was a hard He says, certainly ‘We place done lots of hard work today,’ complaints any heard, but he made no I kind that ” stated, but he awfully job, big job.’ ‘It anwas hard
Dr. Andersen was also called as a witness on behalf of applicants. give testimony, When he started his coun- “qualifications sel for the stated admitted,” his were they but further stated did not “specilizes know whether he expert as an in heart trouble.” The doctor then was asked “specialied whether he in heart trouble.” He answered he did not; graduate that he was a University Maryland, spent year interne, one an practiced and since 1912 pro- Wyoming, Brigham fession in City, City, and at Salt Lake Utah, period twenty years. When if asked he had “ex- practice pertaining tensive cases,” to heart he answered he had what other man had years has with a number *8 practice; that such general cases fell within their prac- tice; that he treated dilatation, cases of cardiac coronary sclerosis, coronary angina occlusion, pectoris, and was fa- those, competent miliar with all and felt testify to with respect to them. No contention was or contrary. one to then, substance, The doctor in testified:
He saw the deceased at office his about 4 o’clock on the complained afternoon of the 15th. pain He of severe under breastbone, pointed to his stomach immediately un- part der the of the bone lower which “we call the ensiform cartilage.” terribly felt He weak and short of breath. He raising gate that in or stated screen at the reservoir Canyon gate City stuck, Creek was and he went to raise suddenly it and was pain; necessary seized with that it was jump for him to gravel and out of the reservoir and shovel happened responsible whatever to being for the screens stuck; pain continued, that the attempted and that he to do his work day, more or all pain less but that the left never him; that he would pain feel a little relieved and the would come first; back as following morning severe as at very little, any, felt if improvement; proceeded that he cut patrolled near weeds the house canyon; that he pains was before; with taken much more day severe than the patrolling canyon that while pain was taken with a down, sufficient to knock him way but that he found his house; weak, perspiring freely and short of breath. When he came to the office he looked almost too sick examination, make much down, of an “I but had him lie shirt, removed his pointed examined his chest. He point originated, where the first and I found he had no soreness or I masses. examined his chest awith stetho- scope sluggish and found a heart that was action. sounds were distinct. strong Didn’t seem to have the im- pulse usually good normally found in a heart. His pulse very poor quality, irregularity but no pulse pressure was heard. His 90, blood over systolic pressure pressure. over the diastolic His skin was clammy, lips finger cyanotic. and his were a nails little I bed, keep sent him home to and told entirely him to off his faint, perhaps feet. He systolic had a a mitral murmur at the apex opinion of the heart. The I formed at that time was that he prolonged had strained heart from con- effort”; tinued that he collapse” had what is called “a heart dilatation”; of “an acute degeneration he found no myocarditis. evidence of
Thereupon applicants counsel for the submitted long hypothetical question doctor a rather consisting of about pages typewriting, four which embodied the substance *9 testimony of the of the wife and the workman and doctor, things to discovered testified matters upon hypothetical question the doctor answered such opinion was as a result of that his deceased died collapse “acute a of continued and severe cardiac result straining, and The accumulation.” doctor further testified that:
In a heart cardiac dilatation the chambers become usually the of the two distended with blood and auricles upper fast chambers force the blood so into the two lower they distended, chambers, ventricles, become being given sufficiency ac- the heart muscle to pouring to into these commodate itself this sudden blood chambers, placed strain, and are under tremendous with the enormous increase of tension within chambers those trying expel general from them into blood circula- tion, stop; heart muscles weaken and that the dilatation after, may very death, shortly be acute with sudden death may or it be of a less nature and death follow in the severe hours, maybe days. In course of a several some number may sufficiently patient heart cases the recover may sometime, may cases live for other die course of a few hours. If the deceased could have had suf- disturbance, immediately upon rest notice of the first ficient might different, provided the outcome have been his heart power carry it would have had sufficient reserve muscles injury on; work, that he the fact continued there one damage upon causing another strain and more added did impossible muscle that made it muscle to the heart for that injury. history From recover from the initial previous never heart. case the deceased had trouble with his might physical have man had some weakness which with, not familiar but the fact that it came on as doctor was placed exertion, can of violent which at a certain result time, no doubt in the doctor’s mind leaves as to the cause injury, “death attributable the exertion.” With death murmur, stated respect the doctor that a murmur *10 usually particular place (apex heart) faint at of the during acute dilatation. “Q. may you It not have been there before A. examined him? It
might not have been.
“Q. might But fact is that he did have a murmur? A. He have had. “Q. change your opinion, Would the fact he had a murmur prior to this work that was strenuous? A. It would not for many doing military during reason that men service the late war through Many people went that war with mitral murmurs. have they and are not aware murmurs of it until are examined. The mitral dangerous. murmur is one of the less The aorta would be most. Triceps second, insufficiency stenosis the and mitral the next.”
In quoting the witness stated he was Ostler. The doctor further persons stated that there were cases where suddenly arteries,” died from coronary “thrombosis in the sometimes without strain or exertion but where there is some heart, ailment of the but that the case as to con- deceased, dition that what caused the cardiac col- lapse was violent exertion exercised him. only city witness called who, was Dr. Viko
he stated:
Graduated Harvard Medical in 1920 and that he had special training in heart my diseases and “about 25'% practice diseases,” is devoted to heart and then stated the special training experience he had had in “heart cases.” He then was asked counsel for the whether he had testimony “heard the in this case.” He stated that he came not, testimony in late and had but heard the of Dr. Ander- hypothetical question sen propounded and heard the him. Then he was asked: “Q. You are familiar with the facts read him of the death of Mr. I Hammond? A. am familiar with the facts as stated in the question hypothetical and the personally information that I secured
after his death. “Q. canyon up high You went line station after Mr. — I Hammond died? A. did. “Q. morning On the of the 16th? A. I did. you history “Q. get from Mrs. Hammond at that time? Did some A. I did. you “Q. get any history Dr. A. When were from Callister? we Did coming However, I going up down. had Mrs. Dr. seen Callister Hammond, us some of it.” and she told propounded question the doctor:
Then this *11 hypothetical “Q. taking you heard, Doctor, all into account have up leading question and has submitted all the evidence which been you Hammond, Mr. can state the Commission what to the death of very your opinion I a relative his death? will make it broad question.” The doctor answered that: preceding history given symptoms as to the the time “The quite typical coronary death due oc- of the death are arterial closing Coronary plugging arterial occlusion is the final or clusion. coronary It of one or more arteries the heart. based hardening coronary per 95 cent of cases on of the arteries about period slowly developing process years, a is a over of months which or artery, picture final occlusion of which shows the clinical may precipitated by, here. It occur or be or contributed described strain, strain, may by physical accident, mental occur with- physical strain, may or mental strain or accident. It out such occur sleep.” during
Thereupon doc- chairman asked commission question: tor the strain, if it is in this case that man did have a established this “So region he felt at the time of over-exertion within the you heart, say contributing would that would then cause? might say contributing that' the final strain be a A. I would cause primary hardening primary cause. The is the not the cause but arteries.” questions response to further asked counsel for
In coronary occlusion applicant, the doctor stated hardening Q. usually upon the result of based arteries. “is case here? A. was the It does don’t know not occur You causes, syphilis except one of that or two one is and the other —either coming body.” from other some course clot is a blood 80 questions being
Further propounded were then doctor when the chairman of the commission stated to coun- applicants: sel for the you Jeppson “Do understand Mr. under our if it is es- law aggravates pre-existing that an
tablished accident condition that compensable? it is Jeppson: “Mr. Yes. already Why “Com. Knerr: The doctor has stated that. this ex-
tended examination? Jeppson: “Mr. all.” That is forgoing in testimony substance is all the in the case. admissibility
Now toas of the statements and dec larations the deceased made to Dr. Andersen and general is, to the deceased’s wife. The rule I and think everyday’s practice, it is and as stated case Northm 271, Urlin, 840, 842, en Pac. R. Co. v. U. S. S. Ct. 977, 39 L. Ed. that: party himself, made, “The declarations of a to whomsoever are com- *12 petent evidence, strictly complaints, expres- when confined to such sions, existing present, and exclamations as furnish evidence of a
pain malady, prove ills, condition, pains, symptoms, or to arising sickness, injury by whether from or from an accident or attendant, they weight If violence. made medical to a are more of person.” than if made to another (2d 2234, In 3 Jones’ Commentaries on Evid. Ed.) says: author appears physician testifying by “Where it that the was called injured ordinary person professional capacity purposes in his and for securing pain treatment, of relief from and for medical and there casting suspicion genuineness are no circumstances utterance, symptoms sufferings, of past all statements whether present, involving though or statements as to the nature of the necessary diagnosis accident, physician, may if to be testified hand, physician
to him. On the other where a examines an in- jured person express purpose testifying physical for the of as to his condition, present pain patient even declarations of physician have been held inadmissible.”
81 proposition put Coghill Quincy, The is well in the case of v. Ry. (Mo. App.) K. 912, 913,
O. & C. Co. 206 S. W. that: that, physician treating is a patient, “It familiar rule where is a inquiry patient necessity intelligent of such ais to The treatment. wholly supposition patient, unreasonable circum- such stances, give information, would him false relieves the communica- objection ordinarily attaching hearsay tion from the to evidence. But that, physician purpose it is said if attendance of the is for the preparing expect- himself pending, as a witness in a ease then or ing arise, for, instance, enter, different considerations in that temptation falsity, magnify, will there stand or at least the true condition.” admissibility present of evidence of declarations
pain, symptoms suffering, upon or dependent not their having presence been made to inor of medical attendants. Ency. If Evid. 576. declarations or state descriptive present ments are of or characterize a pain, suffering, they symptoms, or are admissible whomsoever made. Various reasons have been for the stated admissibility By such evidence. some texts and some judicial admissibility ground put decisions the on the or theory gestae. necessarily But res that does not mean gestae happening contempor res of the accident or injury. aneous with the infliction of the Declarations made illustrate, explain, such time and which or tend to char part acterize the transaction and which are a thereof are gestae though may rule, they admissible under the res pain suffering. or declarations v. Cromeenes San Pedro, 475, Co., 10, L. A. & S. L. R. Utah Ann. 109 P. 1912C, descriptive 307. Cas. Declarations or statements physical which characterize mental or condition of present suffering admissible, symptoms are *13 course, though injury They, made after of the was inflicted. expressive present mental or must characterize or be physical pain suffering symptom, res condition of or gestae condition, prompted to such and which or induced put admissibility the declarations. Other authorities 82 general hearsay exception rule ground, an not as physical competent condi- of the mental or as evidence
but (8 hearsay” Ency. of than and acts rather tion “as verbal by Swayne 575) put and, Mr. Justice Evid., as well 397, 404, Mosley, 8 Co. Wall. Insurance v. case Travelers’ 437, Ed. that: L. feelings bodily are mental of an individual “Wherever or feelings expressions are proved, of such to be the usual material expressions original competent are the natural Those evidence. testimony. impossible by might other it to show reflexes what be testimony, may necessary If be to be this set there such other give proper developed light, and to them their thus in their true facts explanatory evidence, independent or corroborative it effect. As justice. indispensable Such dec- to the due administration often competent regarded acts, are are as verbal as as larations falsity testimony, or to the issue. Their truth other when relevant jury.” inquiry for the an by principles, these the declarations state Tested main, by ments, to Dr. Andersen the deceased by Certainly de the statements made were admissible. suffering character and to and the ceased as experienced, the thereof, extent when first extent by him, the nature and character exertions exercised etc., by him, performed particular of the work such exertion, and were all extent all tended to show the diagnose properly physician necessary enable the statement treat The the deceased and to him. condition of place particular reservoir done at a work was that the may by Canyon City operated controlled Creek may properly That objection, be excluded. open to v. Acc. Ins. Co. the case of North American is illustrated Ky. 125, 170. That case was one Adm’x, 206 S. W. Hill’s policy restricted damages on an accident brought to recover passenger traveling train. on a injuries sustained testify permitted plaintiff physician consulted boarding that, while he was him plaintiff stated to that the throwing violently, suddenly, him train, started grip fell on grip him or that carried he fell on *14 directly bringing him, the case within the of the thus terms testify policy. that, physician held while the court could plaintiff him an accident that the stated to that he sustained grip grip or that the fell on him wherein he fell on body affected, together part symptoms of the with the fol- lowing, but, physician properly treat to enable plaintiff, place it was not essential to mention the where the accident occurred.
Here the to what the work was the 14th and facts as July, thereof, place character and the 15th of the nature and performed, do not rest on declarations or state where it was indisputably All that was ments of the deceased. present testimony of the who was
shown wife performed by nearby the de the work and saw and the exertions exercised ceased and other workmen him, who, testimony with of one of the workmen engaged deceased, The statement or at the work. doctor, he of the made to the declaration deceased ground cutting weeds, proper, day fell to the while next extent the nature and statement tended describe for such way giving in the doctor the pain, but a of the and was too, knowledge severity pain. So, of the formation competent deceased to the doctor was the statement gravel, jumped of a and shoveled in and out reservoir bearing the extent char as to etc., for that too had deceased, especially by the exercised of the exertion acter coupled and shortness of the weakened condition with when nails, lips finger cyanotic condition and the breath bearing him, and had a the doctor found condition in which determining thereof. the cause main, too, and statements the declarations So, Certainly admissible. his wife were also deceased to in which the testimony as to the condition of the wife into the house for appeared he came when deceased blue, lips a little lunch, face and were that his right, and underwear that his shirt look did not perspiration complaints soaking wet with were sleep well, pawed by him, plain that he did not then made morning, hands, was in next with his the condition he *15 pain by day, complaints him next and the the of made the night during day which he was the next and the condition competent. testimony died, the were all as to when Her of the work and the manner in it was done character which by by her the reservoir the deceased and as testified to at hearsay. It was direct evidence of what she no sense was by observed. Nor was the made herself saw and statement appearance by as described the him in connection with his complaints by him, pried and wife of and when open pulled opening gate pain chest, he felt objection, again for such statement but characterized pain complained by descriptive present de- might expressive ceased and was of natural reflexes of what impossible by testimony. other be show Travelers’ Insur- testimony Mosley, supra. state- To limit of mere ance v.Co. pain suffering, stripped of ex- ments or declarations or part prompted pressions of natural reflexes as a thereof and thereby, is, large extent, deny and induced to a the effi- too, cacy of the rule itself. So was the statement of the de- competent patrolling when he returned from the can- ceased looking “terrible, lips yon his color kind of bluish and his blue,” “pain ground,” knocked him all that the down on the merely descriptive again such statement was of the char- for severity present then condition and of the acter of his by pain suffered him. upon undisputed
Thus, what on the whole record and competent That evidence have we? strained effort or over injury may an accidental or for exertion cause death which may may compensation under our Industrial Act be awarded doubted, longer not not here is controverted. be employment That in the course of his at the deceased engaged in rather strenuous efforts and reservoir sufficiently indisputably overexertion is shown. That hearsay. by It does not rest established testi having knowledge mony of the character nature of those performed. from the strained That the deceased work collapse immediately at the reser- did not efforts or exertion outcry or made no or that he then and while in action voir enough controlling factor. It is complaint reasonably fairly thereto. collapse attributable if the by consequence direct shown Nor is essential such may equally facts positive testimony. well be shown It point fairly reasonably and circumstances which contrary any result and to exclusion such result proven equally from facts and circumstances. deducible only permissible Upon record, reasonable the whole collapse heart of the deceased inference is that him and exertions exerted strained efforts occasioned finding performance the reservoir. No of his work contrary, there nor is the commission is made *16 finding All that the commis- to the cause of death. made as introduced as to the evidence found was that “all sion by injured hear- accident is or not the deceased whether was say,” applicant the burden of failed to sustain and that the by caused “by competent that death was proof evidence” arising the em- deceased’s accident out of or course testimony positive that ployment. most There is direct collapse by strained efforts from heart caused he died employ- in the course of his overexertions the reservoir record, rea- no other conclusion is we think ment. On the engaging in permissible. the deceased or Prior sonable July 14, indisputably was the reservoir on work at the that of the work good kind and health. The character disputed. only at the reservoir is not witness he did seen, opinion ex- by Viko. As is Dr. was called “coronary arte- pressed him the deceased from died only upon portion a of the testi- was based rial occlusion” hypothetical question upon mony sub- him and heard canyon him, upon had heard what he mitted and an- morning from Mrs. Hammond after the death respect acquired in such doctor. What information other upon opinion ground based his He not disclosed. was per that, coronary in 95 cent of the cases of death from ar- occlusion, hardening terial death from resulted of the ar- teries, per syphilis. other cent from There was no evidence whatever from hard- that the deceased suffered However, ening syphilis. of the arteries or that he ever had coronary “may the doctor also stated that arterial occlusion precipitated by physical occur or or be contributed to strain, accident,” may mental strain or occur without or sleep.” accident; may during or an such strain that “it occur no But there is evidence that death occurred a strain without during say merely sleep. or from To the death resulted coronary arterial occlusion without strain overexertion independently conjecture, thereof is mere and not based attending of the facts or circumstances the case. again And let it noticed the commission did find that cause; and, death due to such if was the commission had finding upon conjecture. found, so rest would mere seen, only As is real issue the case and about all the given death, evidence was addressed cause of and that finding issue, no whatever as to such the commis- contenting by saying merely sion itself in- that the evidence respect hearsay ap- troduced with thereto and that the plicants “by competent evidence” failed sustain burden proof arising the death caused an accident employment. quite out or in course It evident appli- all the about evidence adduced on behalf rejected by misconception cants was the commission on a competency as to of the law its and on a mistaken motion *17 hearsay incompetent. the evidence so adduced and thereof, considering, weighing, not apply- Because and and ing evidence, rejecting it, an the but award denied. denying compensation order the
Thus is annulled and va- cated, proceedings the cause remanded for further expressed. petitioners accordance with the views herein against given against are but costs not costs commission. HANSON, JJ., and EPHRAIM
FOLLAND concur.
87 MOFFAT, Justice. case in effect over- opinion, however, that this
I am of Comm., Bamberger Ind. 66 Utah v. rules the case of Coal Co. 203, P. 240 1103. HANSEN, (dissenting). Justice
ELIAS as to my opinion is not such In case evidence this compensation. An an require matter of law award as a Act injury compensable under our Industrial death to be when the deceased an accident. The time must result from controlling importance. a heart is not first suffered attack en may experienced first attack while he was his He have working weir, alone not gaged such fact would but may compensation. And likewise he dependents to entitle his until after he had finished his have an attack not suffered preclude dependents work; not his yet fact would such alone though And, right compensation. even from their injury resulting in death while an deceased sustained city, such engaged in of his work for and as the result dependents compensation. fact alone would entitle resulting compensable, injury there or the death To be an an This court accident. from must be result 14, Milling Comm., P. Ind. Utah Co. v. case Tintic following 325, approval quoted 278, 280, 23 with A. L. R. pp. Compensation, 1, 274-278: vol. Workmen’s from Honnold injury, it is to the cause of the “The ‘accident’ refers word denoting1 ordinary popular sense, unlooked an here used in its expected designed event, mishap, or an untoward which is not for injury himself, physiological as a result of as a the workman cause, engaged in, an unusual effect a known work casualty. implies an external occurrence It there was act or contemplates injury It or death. an event not which caused the causing expectation resulting mishap foresight in a within one’s employee.” injury opinion same it is said: Further on something an “What is termed accident must be out of the ordi- definitely place. nary, unexpected, to time If the located as *18 88 injury gradually employment, is incurred in the course of the and thereof, specific
because and is there no event or occurrence known starting point, occupational disease, the it- is held to be an not an and injury resulting from accident.”
The
Milling
doctrine
in
Case,
announced
the Tintic
Co.
supra,
approved
the
of
case
Cherdron Const. Co. v.
Simpkins,
493,
61 Utah
The which of facts are in in the quite stant are case similar to the facts the case of Bam berger 203, Comm., Utah Coal Co. v. Ind. 66 240 1103. P. opinion: The facts in that case are thus stated in the morning January 31, 1925, “On Tullgren applied the of Mr. company employment. agreement coal for Under verbal with yard company began unloading foreman of the of coal he a car morning. compensation per coal on that was 15 The cents ton. designated place, coal was to be unloaded at work was to completed within 48 hours. The deceased continued at the work unloading Nothing appears the coal until noon hour. place during time, except as to record what took that one wit- work, ness testified he observed the deceased at his and some give remark was made to the effect that man ‘this -will out at the rate going he on coal.’ At the noon hour the deceased into came company yard the office of coal where he had been unload- ing coal, complained in his chest. He asked one some hydrant for there a drink water. He was told there awas outside. got up opened door, remarked, get He T when out can’t there,’ present gave and returned and sat down. Some one him couple sips water, kept moaning He drink water. took a groaning, chest, asked, and held his and he ‘Will some take one said, home? I also me am sick.’ He ‘Will some one take me to drug present store.’ of the teamsters or One truckmen him took way Tullgren said, home. On his home Mr. T can’t make He it.’ way remarked on the that he been home had out of work for about thought months, overdid two himself that forenoon. Mr. Tull- gren called, said, died within the next hours. A doctor was examination, upon chest, went that he over the deceased’s but found nothing very lungs, the heart enlarged, but much and was emptying itself. It dilated. He described as what gave opinion termed ‘heart block.’ The doctor it as his de- ‘myocarditis, had a chronic ceased chronic inflamation of the physician Knerr heart muscles.’ Commissioner asked the ques- this : tion *19 “ coal, unloading by this car reason of it ‘You think then was exciting Answer: big it, of his death? lumps cause of was the most ” No; the immediate cause.’ foregoing Industrial Commission
Upon facts compensation. This Tullgren awarded the of Mr. widow award. In opinion by annulled court a unanimous opinion it is said: course of the principles an “Applying the record to the facts disclosed Comm., Milling foregoing (Tintic v. Ind. Co.
nounced in the cases supra), Simpkins, there it be said v. can that and Cherdron Const. Co. showing injury? any testimony showing No is an accidental is during ordinary happened anything to the deceased out of the holding, Assuming, unloading so car. without time he was being Tullgren he was Mr. as to the truckman statements can be considered to had over-exerted himself driven home that he testimony any probative value, nevertheless fails to show have ordinary anything or unex or untoward out of the accident unloading thing during happened No pected the work of car. showing anything upon place given which can be seized time or during happening unexpected the course of the work.” or unusual Bamberger court in the Coal Co. What was said this supra, equally applicable in this case. Case, to the facts applicable principles law and the Both the facts my distinguished. case, in cases cannot well be This two Co., Bamberger opinion, Coal is controlled the case supra, should not of the commission and therefore the order be disturbed. v. JOHNSON
PETERSON (34 697.) July 27, P. 1934. No. 5385. Decided [2d]