66 P.2d 124 (Utah 1937), 5835, Columbia Steel Co. v. Industrial Commission

Docket Nº:5835
Citation:66 P.2d 124, 92 Utah 72
Opinion Judge:MOFFAT, Justice.
Party Name:COLUMBIA STEEL CO. v. INDUSTRIAL COMMISSION et al
Attorney:Dickson, Ellis, Parsons & McCrea, of Salt Lake City, for plaintiff. Joseph Chez, Atty. Gen., and Shirley P. Jones, of Salt Lake City, for defendants.
Judge Panel:MOFFAT, Justice. FOLLAND, C. J., and HANSON, WOLFE, and LARSON, JJ., concur. FOLLAND, C. J., and HANSON, WOLFE, and LARSON, JJ., concur.
Case Date:March 22, 1937
Court:Supreme Court of Utah

Page 124

66 P.2d 124 (Utah 1937)

92 Utah 72

COLUMBIA STEEL CO.

v.

INDUSTRIAL COMMISSION et al

No. 5835

Supreme Court of Utah

March 22, 1937

Proceeding under the Workmen's Compensation Act by Virginia Gentry Nicholes and her minor children for the death of Farrell J. Nicholes, their husband and father, respectively, claimants. opposed by the Columbia Steel Company, employer. To review an award of the Industrial Commission in favor of Virginia Gentry Nicholes and her minor children, the Columbia Steel Company brings an original certiorari proceeding.

AWARD AFFIRMED.

Dickson, Ellis, Parsons & McCrea, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and Shirley P. Jones, of Salt Lake City, for defendants.

MOFFAT, Justice. FOLLAND, C. J., and HANSON, WOLFE, and LARSON, JJ., concur.

OPINION

Page 125

[92 Utah 74] MOFFAT, Justice.

This is a review on certiorari for the purpose of reviewing an award made by the Industrial Commission of the state of Utah against the Columbia Steel Company, a corporation, plaintiff, and in favor of Virginia Gentry Nicholes and her minor children, defendants. The husband of Virginia Gentry Nicholes, and father of the minor children, Farrell J. Nicholes, deceased, aged about thirty years, was at the time of his death an employee of the plaintiff, Columbia Steel Company. Farrell J. Nicholes was a graduate electrical engineer from the University of Utah. Since his graduation, and prior to his employment by the Columbia Steel Company, he

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had been employed part of the time by the United States Mining, Smelting & Refining Company at Midvale, Utah, also for a short time by the Utah Power & Light Company, and part of the time had been out of employment. He had made an application to the Columbia Steel Company for employment indicating his willingness to undertake any sort of employment, and with the hope of advancing as he proved his qualifications. After a time, Mr. Nicholes was interviewed by a representative of the Columbia Steel Company. It was suggested to him that he see the company officials and that he might secure a position. He followed the suggestion. The character of the work was described to him. It was indicated the employment would be at the Columbia Steel Company's mine in Iron county, a short distance out from Cedar City, and that the work would be, at the beginning at least, manual labor.

He became an employee of the Columbia Steel Company in May of 1935. His health at that time was good and prior to that time had been good. Appearance and his own statements indicated he was physically qualified to perform the labor for which he was engaged. Medical examination prior to his beginning work corroborated the statements made as to his health and as to his physical appearance. He worked from May 20, 1935, to July 3, 1935. The record discloses [92 Utah 75] that during the period he worked at manual labor, as surveyor's helper, mechanical repair work, assistant to driver of a caterpillar tractor, and on the day preceding his death he drove the caterpillar tractor all day. July 3d was the last day deceased worked. Death overtook him about 2 a. m. on the morning of July 4th. July 3d was the only day he spent a full day upon his own responsibility riding and driving the caterpillar tractor. On previous days the time spent driving the tractor was divided between the deceased and one Hillberg, a fellow workman who apparently was the regular tractor driver.

The work in which Nicholes and his fellow workman were engaged was preparatory to opening up a new deposit of iron ore and for the construction of buildings incident to the handling of the ore. It was necessary to build roads, to remove trees and rocks, and level the ground for construction purposes. The work done with the caterpillar consisted of pushing over and uprooting trees and shoving them and rocks and earth off the clearing, and grading and leveling the area. The caterpillar was equipped with a blade in front called a "bulldozer" used in the process. In grading the roads or leveling the ground or pushing over and uprooting trees, the blade was raised or lowered as occasior required hydraulically, and earth and rocks, stumps and roots were pushed ahead or to one side as the grading or leveling proceeded. The areas traversed by the caterpillar were uneven and rough and the caterpillar was subjected to considerable jolting and jarring.

The widow of deceased, and one of the defendants here, testified that for some time prior to her husband's death he had come home from his work tired and preferred to go to bed early, but found the Saturday and Sunday lay off restful which tended to refresh him to return to his work on Monday morning; that he came home from work dirty and covered with dust, the ground was dry and the operation of the caterpillar stirred up considerable dust. She testified that on Monday, the 1st day of July, upon her [92 Utah 76] husband's returning from work he appeared more tired and weary than usual. On Tuesday, July 2d, he again appeared tired when he came home and complained of pain in his abdomen; that he lay down on the davenport, then got up and lay down on the floor, got up from the floor and paced up and down the room and said, "I must have acute indigestion"; that he took some bicarbonate of soda and some ginger tea, neither of which seemed to relieve him. He did not eat his supper; he went out, milked the cow, came in and went to bed. She also testified that he had not rested well. He declined anything for breakfast except some fruit juice, and remarked he would rather not eat while he had indigestion. On Wednesday, July 3d, upon returning home, she further testified that he appeared very tired and said: "I am tired; I am all in." He complained of pains in his chest and left arm. He had not eaten his lunch that day. He took a bath, ate a little supper, and went to bed. In a few minutes he fell asleep, apparently very soundly though he was usually a light sleeper. At 10 o'clock when she was ready to retire she turned the light on in his room and he woke up. He said he felt better, that the pain had left his chest, but that his arm ached. He went to sleep again and about 2 o'clock in the morning of July 4th she heard his gasp. She turned

Page 127

the light on and found her husband sprawled on the side of the bed unconscious. She sent for a doctor who arrived in about 15 or 20 minutes, but before his arrival her husband was dead.

The testimony about which complaint is made and which plaintiff claims was erroneously admitted, and without which the findings of the commission are without support in the evidence, relates largely to things alleged to have been said by deceased to his wife shortly before his death. She was asked;

"Did he complain of anything?"

She answered:

"He complained of being very weary. He mentioned something about the caterpillar or something being lodged, tearing out some [92 Utah 77] trees of some sort, I don't remember the exact details. On this occasion he gave evidence of being so tired * * * and he sustained a strain and that is what made him so tired. * * * He remarked the caterpillar had jarred him very much that day."

And,

"Q. When he complained these last two or three days about weariness and about not feeling well, what did he tell you was the cause of it? A. The jolting of the caterpillar. Q. Do you remember his words? A. Yes * * * he said 'the caterpillar sure knocked hell out of me today.'"

It is indicated that defendants made application to the company for compensation. Compensation was refused by the company. About three months after the death of Farrell J. Nicholes, his body was exhumed, and an autopsy held which disclosed that a ruptured aorta was the cause of his death. Application for compensation was then made to the Industrial Commission.

The foregoing, partly narrative and partly quoted, is substantially the evidence relating to the employment of deceased, the nature of his work, incidents connected with its performance, his illness and death. The other testimony connected with the foregoing and upon which the Industrial Commission based its award is that of physicians who testified as to the cause of death as disclosed by the autopsy, and their expert opinions based upon what the autopsy disclosed, and upon the evidence of the witnesses including that of the widow above quoted, and as corroborated in parts or independently as to the employment, the character of the work, and certain incidents relating thereto by other witnesses. The Industrial Commission, among other things, made the following findings:

"III That on or about May 20, 1935, the deceased, Farrell J. Nicholes, was employed by the defendant within the State of Utah in the vicinity of Cedar City, Utah, and was employed by the defendant from that time on and up to and including the date of his death. That the deceased, Farrell J. Nicholes, died early in the morning of July 4, 1935.

[92 Utah 78] "IV That at the time of his death, the deceased was employed by the defendant, working five days per week, and that his regular...

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