Brigham Young University v. Industrial Commission of Utah

• Decision Date: 22 July 1929
• Docket Number: 4835
• Citation: 74 Utah 349,279 P. 889
• Court: Utah Supreme Court
• Parties: BRIGHAM YOUNG UNIVERSITY et al. v. INDUSTRIAL COMMISSION OF UTAH et al

279 P. 889

74 Utah 349

BRIGHAM YOUNG UNIVERSITY et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4835

Supreme Court of Utah

July 22, 1929

Original proceeding by the Brigham Young University and another against the Industrial Commission of Utah and others to set aside an award of the Commission.

AWARD SET ASIDE.

Young &amp Boyle, of Salt Lake City, for plaintiffs.

George P. Parker, Atty. Gen., and M. Logan Rich, Asst. Atty. Gen for Commission.

J. Robert Robinson, of Provo, for applicant Speakman.

STRAUP, J. CHERRY, C. J., and ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

STRAUP, J.

Geneva Speakman, the widow of W. D. Speakman, deceased, and Daniel v. and Scott A. Speakman, his minor children, as dependents under our Workmen's Compensation Act (Comp. Laws 1917, §§ 3061-3165), filed an application with the Industrial Commission for compensation. In the application it, among other things, is alleged that W. D. Speakman, an employee of the Brigham Young University, on July 17, 1928, "was injured by reason of an accident arising out of or in the course of his employment and as the result of such injury died August 14, 1928," leaving the applicants as his dependents surviving him. The Hartford Accident & Indemnity Company was the insurance carrier. Both the university and the insurance carrier were made defendants in the proceeding. Compensation was claimed against both. Both answered the application, denying all of the material allegations therein contained, and especially denied that the deceased was injured by reason of an accident arising out of or in the course of his employment, and that he died as the result of an injury, and alleged that his death was caused by a disease wholly independent of, and unconnected with, an injury. The defendants further alleged that no notice was given the employer of the time or place wherein the accident or injury occurred, or the nature of the same, within 48 hours after the alleged happening of the accident and injury, and that the deceased failed to report for medical treatment within such time, and hence, in the event an award for compensation be made, it was averred that the amount thereof be reduced 15 per cent as by the statute in such case made and provided.

Upon these issues the matter came on for hearing before the commission; the applicants being represented by counsel throughout all of the proceedings, and the defendants by counsel. Evidence was given on behalf of the applicants and upon behalf of the defendants. The commission is composed of three members. Upon submission of the case two members made findings that on July 17, 1928, the deceased "was employed by the Brigham Young University in the capacity of a carpenter and was working at said time for said university on what is known as the President's home in one of the bed rooms of said home hanging a door, and while so employed the decedent bumped the side of his nose on said door causing an injury which developed infection from which he died August 14, 1928". The extent or character of the "bump," or whether slight or otherwise, is not found. It also was found that at the time of the injury and death the deceased was paid a wage of $ 42 a week, working six days a week; that the applicants were the widow and minor children of the deceased, and were dependent upon him for support and maintenance. The two members of the commission as conclusions thus stated that the deceased was injured by reason of an accident arising out of or in the course of his employment; that his death was caused as a result thereof; that the dependents were entitled to compensation at the rate of $ 16 per week for 308 weeks, to be paid by the defendants or either of them in a lump sum; and that the defendants also were required to pay burial expenses amounting to $ 150 and hospital expenses. An award was made accordingly. One member of the commission dissented on the ground that in his opinion there was no substantial or competent evidence adduced to show an accidental injury.

A petition for a rehearing was filed by the defendants before the commission on grounds, among others, that there was no sufficient competent evidence adduced to show that the deceased struck or bumped his nose while hanging a door, or that he otherwise sustained any injury, or that an infection developed from such a cause, or that the death of the deceased was induced by, or attributable to, such or any injury; and that in all events the defendants were entitled to have the amount of the award reduced 15 per cent, because upon the undisputed evidence no notice was given or report made for medical treatment within 48 hours after the happening of the alleged accident or injury. The petition for a rehearing was denied. Thereupon the defendants, in due time and in accordance with section 3148, Comp. Laws Utah 1917, as amended by section 3148, c. 67, Laws Utah 1921, filed a petition in this court for a writ of review on all of the grounds alleged in their petition for a rehearing, and especially on the ground that the findings of the commission that the deceased had sustained an injury, and that his death resulted therefrom or was caused by an injury, were not supported by any or sufficient competent evidence. The defendants thus prayed that the findings of the commission be vacated and the order granting an award be annulled; and further averred that in all events they were entitled to have the amount of the award reduced 15 per cent, for the reasons averred in their answer and stated in their petition for a rehearing. The writ was granted, and, in obedience thereto, the commission, on the last day of January, 1929, certified and transmitted to this court a certified copy of the record and of all of the proceedings had before it, including a transcript of all of the evidence in the cause.

The defendants, the plaintiffs in this proceeding, several days before the record was transmitted to this court, served and filed their brief in support of their contentions as in their petition set forth. On May 1, 1929, the case was set for hearing in this court to be heard on May 21st and all of the parties concerned notified. When the case came on for hearing, no briefs were on file either on behalf of the applicants or on behalf of the commission. However, on that day a written stipulation in the cause was filed in this court, which was entered into by and between the university and the insurance carrier on the one side, and Geneva Speakman, the widow, on her own behalf, and also as guardian of the persons and estates of the minors, on the other side, which stipulation is to the effect that the appeal taken, or application for a review filed in this court by the university and its insurance carrier, "be deemed confessed" by the applicants, "and that this Honorable Court may enter forthwith an order setting aside and annulling in its entirety the award of the Industrial Commission of Utah made and entered in favor of the said Geneva Speakman and the said minors on December 11, 1928," and that such stipulation was made and filed pursuant to a compromise agreement entered into by and between the university and its insurance carrier on the one side and the applicants on the other, a copy of which agreement was attached to the stipulation and made a part thereof. The agreement, among other things, recites the proceedings had before the commission and the award made by it, a writ of review granted by this court on the petition of the defendants for an annulment of the award; that the parties, on May 2, 1929, had agreed that the award made by the commission be set aside, and in lieu thereof the insurance carrier was to pay to the applicants the sum of $ 3, 325, $ 150 towards burial expenses, $ 108 for medical and surgical services rendered the deceased, and $ 11.50 hospital expenses, or a total of $ 3,594.50, $ 500 of the $ 3,325 to be paid to the applicants upon the entry of an order by this court annulling the award made by the commission, the balance to be paid to a named bank, and by it to be paid to the applicants one year after the death of the deceased, or on August 14, 1929.

The reasons for entering into the agreement and stipulation as therein recited are that the evidence and circumstances relating to the alleged injury of the deceased, his subsequent illness and cause of death, are such as to make the case a "border line one," and that serious doubt was entertained by the applicants and by their counsel as to whether the award made by the commission could or would be sustained, and that the applicants and their counsel were of the opinion that it would be to the best interest and advantage of the applicants to accept the compromise settlement entered into. Further recitations are contained in the agreement that the applicants had fully discussed the matter with their counsel and with others, and were advised by them that, owing to the character of the evidence and condition of the record, it would be ill advised to reject the compromise and settlement and to further proceed with the cause and hazard an annulment of the award, thereby precluding the applicants from recovering anything. The agreement is signed, not only by the applicants, but by their counsel as well. Attached to the stipulation and agreement are also copies of a verified petition filed by Geneva Speakman in the district court for her appointment as guardian of the persons and estates of the minors and an order of the court appointing her as such guardian; and also copies of a petition and order of the district court in such guardianship proceeding authorizing and directing the guardian to accept the settlement for and on behalf of the minors and as being to their best interest to do...