Bragg v. Industrial Commission
| Decision Date | 19 October 1950 |
| Docket Number | No. 5139,5139 |
| Parties | BRAGG v. INDUSTRIAL COMMISSION et al. |
| Court | Arizona Supreme Court |
Cox, Lockwood & Lockwood and L. J. Cox, Jr., all of Phoenix and Elijah Allen, of Mesa, for petitioner.
Donald J. Morgan, of Phoenix, for respondent Industrial Commission. H. S. McCluskey and Robert E. Yount, of Phoenix, of counsel.
M. A. Bragg, the applicant here, claims to have sustained an injury to his left knee on November 17, 1947 by reason of an accident arising out of and in the course of his employment as foreman of construction for Ed. F. Bridgeman, dba Bridgeman Construction Company. The respondent Bridgeman was engaged in construction work in Phoenix at the time and was then and there employing three or more employees in and about his business who were covered by insurance carried by the Industrial Commission. No claim for compensation was filed with the commission until February 6, 1948.
The commission, acting upon the record then before it, on March 17, 1948, made its findings and award granting compensation to applicant. Upon application of the respondent Bridgeman a rehearing was granted to permit the introduction of new evidence. On May 12, 1948, this hearing was had and the additional evidence adduced. Thereupon the commission made its findings and award finding in so far as here material that applicant 'did not sustain a personal injury by accident arising out of and in the course of his employment on November 17, 1947' and ordered 'that applicant take nothing from the defendants, or either of them, by reason of his alleged personal injury.'
The matter comes to us on certiorari.
Applicant contends that:
1. The finding that applicant did not sustain a personal injury arising out of and in the course of his employment is in conflict with the evidence in the case.
2. The findings are indefinite, in that they contain a negative pregnant.
3. That the undisputed, unimpeached and corroborated evidence shows that as a matter of law applicant did sustain an injury by accident arising out of and in the course of his employment.
Applicant sets forth further purported assignments Nos. 4 and 5 which under our rules and the decisions of this court, furnish no legal basis for consideration by us. Tidwell v. Riggs, 70 Ariz. 417, 222 P.2d 795.
Applicant argues that the Industrial Commission must accept undisputed evidence corroborated by disinterested witnesses as a fact proven and that any findings to the contrary will be set aside, citing as authority, Illinois Bankers' Life Ass'n v. Theodore, 44 Ariz. 160, 34 P.2d 423; Crozier v. Noriega, 27 Ariz. 409, 233 P. 1104, and Otero v. Soto, 34 Ariz. 87, 267 P. 947. These cases are not authority for the legal proposition urged but do hold that a court may not arbitrarily reject uncontradicted evidence when nothing intrinsic in the evidence itself or extrinsic in the circumstances of the case casts suspicion thereon. In re Gary's Estate, 69 Ariz. 228, 211 P.2d 815 extends the above rule.
We do not have to invoke the rule laid down in these cases however for the reason that this is not a case where the evidence is without conflict. The evidence with respect to whether applicant was injured as a result of an accident arising out of and in the course of his employment is conflicting in a number of particulars.
Applicant in his first claim for compensation stated he 'stepped into exc. of foundation footings wrenching knee on left leg.' In his second claim he stated:
The first claim contained no intimation that applicant fell and especially that he had fallen 3 to 3 1/2 feet into a concrete excavation. According to his first claim he merely stepped into the excavation and wrenched his knee. Ordinarily one does not merely step into an excavation 3 to 3 1/2 feet deep. Standing alone however this discrepancy would not appear to be so glaring but we have an irreconcilable conflict when we consider the testimony of Mr. and Mrs. Catlin to the effect that applicant stated to them he had arthritis causing lameness in his knee and compared it with Mr. Catlin's arthritic condition and stated he was then being treated by a chiropractor (he admitted on...
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