Bamberger Coal Co. v. Industrial Commission of Utah

• Decision Date: 30 October 1925
• Docket Number: 4285
• Citation: 240 P. 1103,66 Utah 203
• Court: Utah Supreme Court
• Parties: BAMBERGER COAL CO. v. INDUSTRIAL COMMISSION OF UTAH et al

240 P. 1103

66 Utah 203

BAMBERGER COAL CO. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4285

Supreme Court of Utah

October 30, 1925

Proceeding under the Workmen's Compensation Act by Sarah Elizabeth Tullgren for the death of her husband, Jacob Tullgren, claimant, opposed by the Bamberger Coal Company employer, and the United States Fidelity & Guaranty Company insurance carrier. From an award made by the Industrial Commission in favor of claimant, the Bamberger Coal Company brings proceedings to review the award.

AWARD ANNULLED.

Ray &amp Rawlins, of Salt Lake City, for plaintiff.

Harvey H. Cluff, Atty. Gen., J. Robert Robinson, Asst. Atty. Gen., and K. K. Steffensen, of Salt Lake City, for defendants.

GIDEON, C. J. THURMAN, FRICK, CHERRY, and STRAUP, JJ., concur.

OPINION

GIDEON, C. J.

Proceedings to review an award of the Industrial Commission. Sarah Elizabeth Tullgren, widow of Jacob Tullgren, made application to the Industrial Commission for compensation for the death of her husband, claimed to have resulted from an accident while employed by the Bamberger Coal Company. The United States Fidelity & Guaranty Company is the insurance carrier, and for that reason was made a party to the proceeding.

The testimony is not in dispute. It appears that the coal company is engaged in the retail coal business in Salt Lake City. It receives carload shipments of coal at its yards. On the morning of January 31, 1925, Mr. Tullgren applied to the coal company for employment. Under verbal agreement with the foreman of the yard of the coal company he began unloading a car of coal on that morning. The compensation was 15 cents per ton. The coal was to be unloaded at a designated place, and the work was to be completed within 48 hours. The deceased continued at the work of unloading the coal until the noon hour. Nothing appears in the record as to what took place during that time, except that one witness testified that he observed the deceased at his work, and some remark was made to the effect that "this man will give out at the rate he is going on that coal." At the noon hour the deceased came into the office of the coal company in the yard where he had been unloading the coal, and complained of pain in his chest. He asked some one there for a drink of water. He was told there was a hydrant outside. He got up and opened the door, when he remarked "I can't get out there," and returned and sat down. Some one present gave him a drink of water. He took a couple of sips of water, kept on moaning and groaning, and held his chest, and he asked, "Will some one take me home? I am sick." He also said, "Will some one take me to the drug store." One of the teamsters or truckmen present took him home. On his way home Mr. Tullgren said, "I can't make it." He remarked on the way home that he had been out of work for about two months, and thought he overdid himself that forenoon. Mr. Tullgren died within the next 24 hours. A doctor was called, and said, upon examination, that he went over the deceased's chest, but found nothing in the lungs, but the heart was very much enlarged, and was not emptying itself. It was dilated. He described it as what is termed "heart block." The doctor gave it as his opinion that the deceased had a chronic "myocarditis, a chronic inflammation of the heart muscles." Commissioner Knerr asked the physician this question:

"You think then it was by reason of unloading this car of coal, big lumps most of it, was the exciting cause of his death? Answer: No; it was the immediate cause."

Two objections are urged against the award. Stated in the language of defendant's brief, they are: (a) Was Jacob Tullgren on January 31, 1925, an independent contractor, or was he an employe of the Bamberger Coal Company? (b) Did Mr. Tullgren die by reason of an accident arising out of or in the course of his employment or by some other cause?

It is conceded that the Bamberger Coal Company is an employer subject to the provisions of the Workmen's Compensation Law of this state (Comp. Laws 1917, §§ 3061-3165). The particular section of the Industrial Act under which compensation is claimed is as follows:

"Every employe * * * who is injured and the dependents of every such employe who is killed by accident arising out of, or in the course of his employment, wheresoever such injury has occurred. * * *" Section 3113, as amended by Laws 1919, c. 63.

It is not necessary as we view this case to consider or determine the first objection raised to the award, as we are of the opinion the award must be annulled upon the second objection. The concrete question here is, Is there any evidence in the record showing an accidental injury? The court had occasion to consider what constituted accidental injury in former decisions. In Tintic Milling Co. v. Ind. Comm., 60 Utah 14, 206 P. 278, 23 A. L. R. 325, in the course of the opinion, the definition of an accident, as found in 1 Honnold, Workmen's Compensation, p. 274, is quoted with approval as follows:

"The word 'accident' refers to the cause of the injury, and it is here used in its ordinary and popular...