Bain v. Industrial Commission

• Decision Date: 21 June 1921
• Docket Number: 3678
• Citation: 199 P. 666,58 Utah 370
• Court: Utah Supreme Court
• Parties: BAIN v. INDUSTRIAL COMMISSION et al

199 P. 666

58 Utah 370

BAIN v. INDUSTRIAL COMMISSION et al

No. 3678

Supreme Court of Utah

June 21, 1921

Application of George E. Bain to the Industrial Commission of Utah for compensation for alleged injury in his employment by the Charles Dee Printing Company was denied, and he brings certiorari.

ORDER AFFIRMED.

John A Sneddon, of Ogden, for plaintiff.

Harvey H. Cluff, Atty. Gen., and John R. Robinson, Asst. Atty. Gen for defendants.

THURMAN J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

Certiorari to review certain proceedings of the Industrial Commission. On the 21st day of December, 1920, plaintiff was in the employment of the defendant Charles Dee Printing Company, an employer subject to the provisions of the Utah Industrial Act. The defendant United States Fidelity & Guaranty Company carried the insurance for said employer. The plaintiff was 21 years of age and earning $ 21 per week. Plaintiff made application to the defendant Industrial Commission (hereinafter called Commission) for compensation under the Industrial Act (Comp. Laws 1917, tit. 49), claiming that on the date last mentioned he had been injured by an accident occurring in the course of his employment. The jurisdictional facts above stated were stipulated at the hearing before the Commission.

Plaintiff's claim for compensation is based upon an alleged injury caused by a small sliver of lead striking him in the face while engaged in said employment, from which injury infection occurred, resulting in erysipelas. In addition to the facts stipulated, the Commission found that plaintiff--

"did not establish by competent or direct evidence that he met with an accident on the 1st day of December, 1920, and that the erysipelas suffered was the result of an accident as alleged."

As conclusions from the findings, the Commission found and ordered that the application for compensation should be denied. Plaintiff assails the finding and order of the Commission on the alleged grounds that the same are against law and contrary to the uncontradicted evidence produced at the hearing.

The question presented calls for a brief review of the evidence upon which plaintiff relies. His testimony concerning the alleged accident is to the effect that on the 1st day of December, 1920, he was at work in his employment planing down a form of linotype; that before putting the form on the press he had to take a mallet and planer--a square piece of wood--and pound on the wood, so as to get the form even. While doing this a small piece of lead struck him in the face. The next morning it was very painful and he picked it out. It was a sliver so small one could hardly see it. Three or four days after that a lump formed on his nose. It got worse, and about the 4th or 5th of December he laid off work. Plaintiff testified the lead had struck him on the right side of the face. Some disfigurement developed on the left side, near the eye. He was attended by Dr. Wilson, who treated him for erysipelas. Several experts testified at the hearing. Their testimony was generally harmonious, and quite conclusive that erysipelas might result from an infection, where the skin had been punctured or scratched. In fact, assuming that the accident as described by plaintiff actually occurred, the experts were of the opinion that, if infection took place, it might result in erysipelas.

No other persons witnessed the accident or knew of its occurrence, except as they were informed by plaintiff. Mr. Chas. Dee, the employer, testified, among other things, that it was not uncommon for pieces of lead to strike one engaged in that kind of work; that he had been so struck many times.

In the foregoing statement, we have purposely selected and presented those features of the evidence most strongly in favor of plaintiff's contention. If they were admitted to be true or conclusively established by the evidence, we might be inclined to hold, as matter of law, that the findings and conclusions of the Commission, of which plaintiff complains were contrary to law, arbitrary-and capricious, and should be vacated and set aside. But it must be remembered that the findings and conclusions of the Commission on questions of fact are conclusive and final, and not subject to review. Sess. Laws 1919, p. 165. Before this court can disturb such findings and conclusions, it must appear as matter of law that they are contrary to law and contrary to the evidence. The Commission are the judges of the credibility of the witnesses, and in determining the facts, if there is any substantial reason why they should not believe the testimony of any particular witness, they have the...