*1 which conflicts process tion on return affi- in the defendant’s allegations NUZUM, of Alfred Pauline Celeste Ex-wife arises, conflict as in a crucial davit. Where Deceased, Nuzum, behalf of his J. on by- resolved the matter Helen, children, Lorna minor Celeste and evidentiary so hearing depositions or an Plaintiffs, testing representations factors Autera, supra, of witnesses as found the Dis- Accordingly, we reverse
obtain. CONSTRUCTION ROOSENDAHL of the defendant’s mo- trict Court’s denial In and the MINING CORPORATION default judgment tion to set aside the Defendants. dustrial evidentiary for an remand said motion hearing on factual issue disputed abode at the time place defendant’s usual Court Supreme of Utah. his process upon was served mother. Cost to defendant. J., J., MAUGHAN, con- C.
cur.
CROCKETT, (concurring Justice with comment):
added agree
I that at least should be
hearing in to defendant’s residence. regard go
But I would further. my that the defendant’s state view
ment in his under oath that he did affidavit
not reside at that address had not stands unrefuted. The
ceived summons quoting
notation the return summons (his mother) party statement of a third hearsay as to the defendant and
binding upon him. In the absence of
challenging equal dignity pleading affidavit, no basis upon contrary his aver
the court could find
ment. with what has been accordance policy
said and with the declared law to setting be liberal aside judgment party
default to the end that a court, I
may have his would remand Westinghouse
for that Elec purpose. See v. Paul Supply Company
tric W. Larsen
Contractor, Inc., Utah, 544 Crook, P. 504.
Bylund
HALL, J., *2 job
who on the while as a expired working truck driver for defendant Roosendahl Con- Mining Corporation. is- struction and his death sue whether resulted from arising out of or in the of course his employment.1 13, 1974, of his March
On the job his regular Mr. Nuzum was at Roo- driving dump a ten-wheel truck on a sendahl in project construction Kearns. The driver’s seat of the truck is 6 off feet ground. by The driver gets into it steps: three substantial the first about ground, inches off the the second similar tank; top distance to the of the fuel and the rest a foot into and by placing the cab pulling himself the seat. When the truck is sits properly, driver loader; in it while it is filled when and load, dumps its he remains in and his seat operates an air-valve mechanism which raises the of the truck. due bed to a malfunction this mechanism on Mr. time, Nuzum’s truck at that go through unload the truck had to down, climbing going exertion of around manually the other of the side lever, operate control then return and pull himself back into the seat. thisOn day he had done this at least 6 times. On a occasion, succeeding got when he out of truck, he distressed to point seemed fell and partially was able to stand up only difficulty proceeded around to the other side of the truck. him, When a fellow worker went to talk to lying ground. Mr. Nuzum was on the (later that he was in apparent extremis Meservy, A. of Meser- Jay Verhaaren & attack) determined to a heart from vy, City, plaintiffs. Lake Salt which he suffered for a few minutes and Black, Rawlings, James R. Roberts expired. Black, Lake City, for defendants. Salt support of the Commission’s CROCKETT, Justice: award, rely fusal defendants to make the broad latitude discretion with which Review Industrial Commission’s compensation to Commission is endowed plaintiffs, denial of statute,2 children of the facts our surviving Jay Alfred finder of 35-1-85, U.C.A.1953; definition of 2. Sec. 2d disability) while on the thereon,3 injury recognize. decisions our way his duties usual Nevertheless, conferring right compensable not intended to accident. necessarily court4 was on this review futility having “The saying that but an exercise of the folk The truism all actions stamp rubber automatically taxes” is are death and things certain right to the Analogous *3 sense, the Commission. thus in one and that recognized; was intended system, it appeal our court to surely nor more certain more nothing is arbitrary, against possible a safeguard as But, the time of than death. expected be unjust actions Com- or unreasonable is so certain. not for each individual death determine the Though we do not mission. necessarily be for death must Each man’s such that all the evidence is where event; extraordinary unusual and him an way, find one minds should reasonable result of as a direct when it occurs fact, is, that there is no real “issue” of his duties that fact exertion facts; and to such dispute is not actual as component of the total important is also an as a matter of ruling should be made the determining analyzed picture to law.5 oc- an there was such whether as an regarded it should currence that testimony these the medical From meaning of the statute.7 within the that question: without appear facts to be existing heart defi prior had a a consideration We revert to occlu there was substantial ciency that foregoing: light in the the evidence feed the heart sion of the vessels which Nuzum had though it true that Mr. Even is itself; ef would have the muscle that this described heart weakness pre-existing preventing getting the heart from fect of facts are: the immutable oxygen; that nourishment and adequate of a job; on his that because was of the heart rhythms causes abnormal this large in this truck was defect of all this mechanical that the result (fibrillations); repeatedly hoisting put ability get necessity to blood to to the heart’s diminish abnormally long steps into body. position adopt these to the rest of the himself put greater decision that and was thus to ed in Commission’s cab condition, pre-existing this heart rather have been normally than exertion as de above than exertion if the had been required scribed, Nuzum’s death. that caused Mr. placed such stress and that properly; in that connec to be considered that it could already heart on his weakened rule is the well established that tion burden, not wherefore cope pre-existing has a defi though workman con This and resulted in death. failed disease, if or industrial ciency medical support finds clusion aggravates it lights up or which Okawa, K. which by Dr. K. testimony, given compensable.6 it is disability, getting the effect was to would have the truck several times out of misunderstand- against any As a caveat upon the extra exertion herein, involved heart we reach ing of the conclusion rhythms would enhance the abnormal following observations: we do make his death. contributing cause to (or be a dies suffers person time say Comm., 311, v. Ind. 115 Utah 204 also Dole v. g. 90 3. See e. Norris Comm., Moray Ind. 256, 462. Utah P.2d 404, P. 58 Utah 199 1023. Comm., 140, 19 Utah 2d Powers 6. 740. P.2d Comm., v. Ind. Russell See 5. denying compensa- v. Industrial footnote P.2d where 7. material, Tavey there was v. Industrial tion was vacated where substantial, competent evi- and uncontradicted law; justify see award a matter dence as opinion It is our that the only conclusion Whether the death resulted from an acci- dent simply or was the result of to be drawn from the evidence which is a diseased heart is a fact to be found the defendant principles jus- conformable to of reason and ample commission in this case. On tice is that Mr. Nuzum’s death resulted furnished by plaintiff, the defendant from an “accidental” occurrence arising out found that death did not result from an of and in the course of his employment;8 35-1-85, U.C.A.1953, accident. Section and that should have the amended, provides that “The findings and award provided statute.9 conclusions of the questions commission on purpose Remanded for the of making the of fact shall be conclusive and final and appropriate award. No costs awarded. review; shall not be subject . . .”. The only exception is that when the evi- HALL, JJ., MAUGHAN and concur. dence is not sufficient to justify *4 made, this Court on review a may say as (dissenting). Chief Justice matter of law cannot Alfred J. Nuzum had suffered from a stand. In this the evidence seems long heart condition for a period of time. conclusive that there was no accident. The doctor who testified on behalf The ruling made by the defendant com- major stated that vessel to mission should be affirmed. Mr. Nuzum’s heart was 90% occluded and that death could occur while he was in HENRIOD, Justice (dissenting). bed and asleep. He further testified that I dissent out of deference to the oft-re- exercise, sort of including walking, peated principle substantial, that if there is could cause death and that Mr. Nuzum competent, admissible to support not have been job. the order of statutory arbiter of the He smoking testified that and drinking appellate review, should survive which in abe cause. testimony Other showed my opinion, appears to be the case here. that Mr. Nuzum heavily smoked and drank
to excess. WILKINS, J.,
The truck which operated Mr. Nuzum had
been in a requiring condition manual dump-
ing, and operated the truck in
that manner during period exceeding thir-
ty days. Getting in and out of that truck to dump the load was no accident. It was the HOWELLS, INC., corporation, only way to operate the machinery, and Appellant, Plaintiff and
was the usual way to do so. The only thing unusual that occurred was the death of Mr. and that was NELSON, aka William William Lord As since it could have happened while he was sociates, Respondent. Defendant and
in bed asleep. There was no accident in any sense of the Supreme Court of Utah. word. There was nothing unusual about work; it was the very work for which he was hired. He simply took on a
which required him to dismount from the
driver’s seat six or seven a day. times comparable 8. See a see also Powers v. Industrial case where there was extra footnote 6 exertion, causing al., heart, Corp. and Jones v. Calif. Pack. unusual strain on the et attempting when the deceased was to turn over it, skinning see Robertson v. a dead horse in