Boyd v. Industrial Commission of Utah

• Decision Date: 26 July 1935
• Docket Number: 5631
• Citation: 88 Utah 173,48 P.2d 498
• Court: Utah Supreme Court
• Parties: BOYD v. INDUSTRIAL COMMISSION OF UTAH et al

48 P.2d 498

88 Utah 173

BOYD v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5631

Supreme Court of Utah

July 26, 1935

Opinion denying rehearing in 88 Utah 184, 53 P.2d 80.

Certiorari by Mrs. Reese Boyd, claimant, widow of Reese Boyd, deceased employee, to review an order of the Industrial Commission denying compensation, opposed by Knowlton & Rupert employers, and the Employers' Liability Assurance Corporation, Limited, insurer.

AFFIRMED.

O. H. Matthews, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and Gustin & Richards, of Salt Lake City, for defendants.

WOLFE, Justice. ELIAS HANSEN, C. J., and FOLLAND, J., concur. MOFFAT and EPHRAIM HANSON, JJ., concur in the results.

OPINION

WOLFE, Justice.

Certiorari to the Industrial Commission to review an order denying compensation to the widow and children of Reese Boyd, deceased. On March 30, 1934, and a few days prior thereto, Reese Boyd was working as a carpenter on the building of a bridge for Knowlton & Rupert, who were subject to the Workmen's Compensation Act (Rev. St. 1933, 42-1-1 et seq.). On March 30th, upon returning from work, he complained to his wife that he was ill. He became progressively worse, and on April 8th died. There was direct evidence that he had a bruise on his left shoulder and left arm, discovered by his wife on March 31st. There is no dispute as to the foregoing facts. There was direct evidence that he had helped to carry heavy pipe. Reese told the doctor that the labor foreman, in order to help him, had pushed against his back and the force broke a button on his overalls and bruised his shoulder. He told his wife he got the bruise helping one of the men lift a pipe, and that he balanced it against his shoulder, two or three days before he quit work. This indirect testimony is the only evidence of how and where he got the bruise.

There was direct evidence by his wife that when he came home on the 30th of March he complained of pain in his hands; that she took two or three slivers from his hands; that his hand was infected. This is the only direct evidence that there were slivers in his hand, but there was direct evidence from the doctors that his hands were sore; that they contained angry and infected looking sores. There is also evidence from Parkinson, for whom he worked during the period he was working on the bridge, that he had a bandage on his left hand and his thumb and finger wrapped up. This was two or three days before March 30th. He told Parkinson that he hurt it on the bridge.

The doctor who attended him was of the opinion that his death was caused by an infection getting into his hands, transferred to the bruised area of the shoulder, and that in this area of weakened resistance it spread over the body. Another doctor who saw him a few hours before his death testified that death was due to some form of streptococcus, either straight erysipelas or straight streptococcus infection, and that it could start from infection caused by slivers in the hand.

The commission found that he died on April 8th from erysipelas of the body; that his death was not directly or indirectly due to an accident arising out of his employment while employed by Knowlton & Rupert, and consequently denied compensation.

The links in the necessary chain of causation from the accident to his death are: (1) Did he have an accident? (2) Did it occur while he was employed by Knowlton & Rupert? And (3) did it cause the death? As to (1) there is observation evidence as to the presence of the bruise and of the slivers. Therefore, there is evidence as to an accident because it may be inferred that the bruise and slivers were caused by an accident. Men do not get bruises or slivers in their hands as incidentally but only as accidentally to their ordinary existence. There is evidence as to (3); that is, there is competent opinion evidence on the part of the doctors that death was caused by primary infection starting in his hands which led up to the bruised area in his chest and spread throughout the body. It may be inferred that the infection which started from his hands arose from the slivers because there was sufficient evidence that the sores which were caused by infection were caused by the slivers. As to (2) there is perhaps some circumstantial evidence and, in addition, testimony of the deceased speaking through witnesses who testified as to statements made by him to them. We avoid at this juncture the use of the word "hearsay" because some of the authorities class certain evidence of that character, i. e., expressions by the person injured showing present pain and suffering, as verbal acts and not hearsay. Other authorities call it hearsay but make it an exception to the hearsay rule. For that reason, until the matter in the declarations is segregated and classified, we shall call it transmitted evidence of such. Certain evidence may be competent. Other evidence of this type is not, depending upon conditions under which it is given and the extent to which it goes, as set out hereafter.

The applicant seems to infer that the reason the commission denied compensation is that it determined that there was nothing but hearsay evidence to support the link of the chain relating to where and when the accident occurred. However, the record itself is silent as to why the commission concluded that "an accident did not occur while the deceased was employed with Knowlton and Rupert." The only intimation that the commission found as above is as contained in one or two expressions by Mr. Knerr, the examining commissioner, during the course of the examination. Mr. Knerr asked the attorney for the applicant, "Have you any witness to the accident?" to which counsel answered, "No," to which the examiner replied, "It appears that all your evidence so far is hearsay unless the death certificate is admitted." Further, at the end of the second hearing the commissioner stated, "The question as I see it, Mr. Mathews, is as to whether the evidence pertaining to the accident is other than hearsay." These are the only indications contained in the record that the commission thought there was no competent evidence of slivers entering the hand while the deceased was working for Knowton & Rupert.

We shall first examine the question as to whether transmitted accounts of how the bruise and slivers came about are competent. If they are competent, then the question will remain as to whether the commission was justified in law in coming to the conclusion that it did in view of all of the competent evidence. If it is not competent, then the question will remain, Was there any other competent evidence and, if so, can it be said as a matter of law that the commission should necessarily have found for the applicant upon such competent evidence?

Evidence of the accounts by the deceased of how he received the bruise and slivers falls under two heads: (1) Those alleged statements of his made to a doctor; and (2) those made to laymen. They may be divided in another way: (1) Those made in connection with statements regarding pain or complaint as to how he was feeling; and (2) those made purely as a statement unattended or unconnected with a statement as to mental or physical condition or feelings. We refer to the testimony in question by capital letters, as we shall hereafter refer to it by such means to avoid repetition.

(A) Statements by the wife on March 30:

"Q. Did he state how he received the slivers? A. Just working on the job, he said."

The record shows as near as may be that this was at the same time the wife was extracting the slivers after he had complained of pain in his hands.

(B) Conversation with his wife on March 31st:

"Q. Did you have any conversation with him regarding how he got the bruises? A. I asked him he got the bruise. He said he was lifting a pipe helping one of the men lift a pipe, and he balanced it against his shoulder and that in that way he got the bruise. It had been two or three days before."

This conversation does not appear to be in relation to any complaint or to explain how he was feeling, or to have been necessary in any way for her to treat him, but was prompted by her noticing the bruise while he was in bed and her inquiring about it.

(C) The wife testifying on cross-examination:

"Q. Did he say where he got this particular sliver? A. He said he got it on the job working on the bridge ." (Italics supplied.)

(D) The wife's testimony on the second hearing:

"A. When he came home on Saturday morning, March 31st, is when I noticed a big blue spot on his left shoulder. I asked him how he got it. He said, 'I was helping carry a pipe up there, and that is how I got it.' He said, 'I had lifted it up and had it balanced against my shoulder, and one of the other men kind of pushed back.' He said, 'It was a hard push and it broke a button off my overalls.'"

It does not appear that this statement was made in connection with or as a basis of any treatment or information necessary to make a treatment on the part of the wife, or as an indication of any feeling.

(E) Testimony by Parkinson: He testified he was remodeling a store in Morgan and employed Boyd as a carpenter to tear out old shelving and rebuild it into a counter. It was rough work. He was employed for a couple of hours in the morning before he went to work on the bridge. This was two or three days prior to the time he took sick.

"Q. Do you know whether or not while he was doing that work (work for Parkinson) he was injured? A. No, I don't. I noticed when he first came to work he had some bandages on his left hand and his thumb and finger wrapped up. When he first came to work for me he said he hurt it on the bridge." (Italics supplied.)

Here is a statement made apparently as pure...