Ison v. Western Vegetable Distributors

• Decision Date: 13 July 1936
• Docket Number: Civil 3732
• Citation: 59 P.2d 649,48 Ariz. 104
• Parties: R. L. ISON, Petitioner, v. WESTERN VEGETABLE DISTRIBUTORS, Defendant Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents
• Court: Arizona Supreme Court

59 P.2d 649

48 Ariz. 104

R. L. ISON, Petitioner, v. WESTERN VEGETABLE DISTRIBUTORS, Defendant Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier, Respondents

Civil No. 3732

Supreme Court of Arizona

July 13, 1936

APPEAL by Certiorari from an award of The Industrial Commission of Arizona. Award affirmed.

Mr Terrence A. Carson, for Petitioner and Mr. Emil Wachtel (of Counsel).

Mr. Don C. Babbitt and Mr. Howard A. Twitty, for Respondent Industrial Commission.

OPINION

LOCKWOOD, C.J.

This is an appeal from an award of the Industrial Commission of Arizona, hereinafter called the commission, denying compensation to R. L. Ison, hereinafter called the petitioner, for injuries which the latter alleges he received as the result of an accident arising out of and in the course of his employment. The commission made the following finding which was challenged by the appeal:

"That the evidence is insufficient to establish that said applicant sustained any injury by accident arising out of and in the course of his said employment on or about said date; and the evidence is further insufficient to establish that the disability from which said applicant alleges to be suffering is proximately the result of accident."

This finding is, in reality, a finding upon two issues of fact; the first being that the evidence is insufficient to show the accident upon which the petitioner relies happened; and, second, that even assuming there was an accident, the evidence is insufficient to show that the disability from which the petitioner admittedly has suffered was caused by the accident. We must, therefore, consider the testimony in the case, and, in so doing, are bound to apply the rule to which we have adhered consistently, that if there is reasonable evidence sustaining the award of the commission, this court will not set it aside.

We consider first the evidence in regard to the alleged accident. It is the contention of petitioner that while he was engaged in putting tops on certain lettuce crates by means of an electric lidding press, a crate on which he was working was ejected from the press in such a manner as to hit him a severe blow upon the chest, and that as a result of such accident his lung became abscessed, so that he lost four months' work. In support of the fact that the accident did occur, we have the testimony of the petitioner himself the affidavit of one James F. Brown, who apparently saw the crate hit petitioner; the testimony of the witness Akin, who did not actually see the accident but saw the crate of lettuce scattered over the floor immediately after the accident was said to have occurred, and heard petitioner complain the next day of being hit; and the testimony of witnesses Roach and Sprankle, who also heard petitioner complain of the accident the day after it happened. As opposed to this, we have the statement of the employer's foreman, who said that while he heard the petitioner claim his side hurt him shortly after the accident, he did not state that the pain was caused by the accident until the time when he went to the hospital, nearly thirty days after the alleged accident. On this evidence, was the commission justified in the finding that it was not proved the accident occurred?

We have held that in view of the interest of an applicant for compensation, the commission is not required, as a matter of law, to accept his uncorroborated testimony in regard to an accident. Davis v. Industrial Commission, 46 Ariz. 169, 49 P.2d 394. But we have also held in several civil cases, and we think the same rule applies to compensation cases, that triers of fact may not disregard the undisputed testimony of witnesses who have no interest in the matter, unless their testimony is unreasonable or impeached by some of the circumstances of the case. Otero v. Soto, 34 Ariz. 87, 267 P. 947; Equitable Life etc. Soc. v. De Johnson, 36 Ariz. 428, 286 P. 817. Applying this last rule, we think the commission was not justified in disregarding the affidavit of Brown, which is, in substance, that he saw the accident occur, especially when corroborated by the testimony of the other witnesses in regard to the complaints made by petitioner shortly after the accident. We hold, therefore, that the finding that there was insufficient evidence to show that the petitioner was injured by an accident arising out of and in the course of his employment on April 9, 1935, is not sustained by the record.

We consider next the question of whether any disability arose from the accident and injury. It is not every accident nor every injury arising from an accident which is compensable. The theory of the law is that it is only injuries which produce financial loss to the injured party that are compensable. Sections 1421, 1438 (as amended by Laws 1933, 1st Sp. Sess., chap. 11, § 6), Rev. Code 1928. The petitioner claims compensation for loss of time which he alleged was caused by the accident and injury. It is admitted that he was compelled to go to the hospital for a chest affection on April 28th, and that by reason of such affection he lost about four months' time from his work, being apparently perfectly recovered after that period. The question then is, Was the condition which caused his hospitalization and subsequent loss of time caused by the accident of April 9th? Like most cases, where the injury is not an immediate and patent one, such as the loss of a member or a broken limb, the question of causal relation between the accident and the disability depends upon expert medical testimony. Two expert medical witnesses gave evidence on this point, Dr. Fred G. Holmes, and Dr. Coit I. Hughes, both of them thoroughly qualified physicians. Dr. Hughes first saw petitioner on April 28th. After examination, he sent him to a hospital, and diagnosed his case as being a ruptured blood vessel in the lung which had produced a clot of blood, blocking a bronchial tube, which eventually resulted in an abscess of the tube. He judged, from the history of the case given him by the patient, that the original cause of the lung condition was the blow received from the crate of lettuce on April 9th. Dr. Holmes examined the patient some time later, but prior to June 18th. He also examined the X-rays taken of the patient while he was in the hospital, and had other X-rays taken at the time of the physical examination made by him, and secured a full history of the case. He made a very full report, which was characterized by Dr. Hughes as being very fair, and reached the following conclusion:

"It would seem that all of the symptoms in this case would be adequately explained by a pneumonia with possible small abscess formation starting the latter part of April and concluding after eight days in the hospital. His pain on taking a deep breath is undoubtedly due to some lung adhesion on this side following this condition. Whether one may in any way ascribe this pneumonia with probable lung abscess to his accident on April 10th is difficult to say. If the history as obtained is correct that he did not show any sickness from April 10th to April 28th, it would seem that eighteen days intervened before his pneumonia. A pneumonia following a severe contusion to the chest is possible but quite rare. However, such a pneumonia would be expected to supervene within three or four days or at most a week. It is felt that pneumonia is usually due to a plug in a bronchus and there is no reason to think that such a plug should wait for several weeks to form. It is very rare to find an abscess formation following an injury to the chest. Any injury to the chest which is not sufficiently severe to stop him from working would be most improbable as a cause of a pneumonia two weeks later. One cannot absolutely exclude an old tuberculosis in this case, but I believe that all of the symptoms and findings can be just as well accounted for as following his acute pneumonia with probable lung abscess early in May."

It will be seen by this that Dr. Holmes agreed with Dr. Hughes in diagnosing petitioner's trouble as a lung abscess, but concluded that it was very improbable that it was caused by the blow on the chest of April 9th. We have, therefore, the opinion of two reputable physicians in direct conflict as to whether it appeared affirmatively that the abscess was the result of the blow. It is, of course, the law that the petitioner must establish his case by a preponderance of the evidence upon every material point in compensation cases in the same manner as the plaintiff in civil actions. Ocean Accident & Guarantee Corp. v. Industrial Com., 32 Ariz. 265, 257 P. 641; Johnson v. Industrial Com., 35 Ariz. 19, 274 P. 161. Preponderance of the evidence means such evidence as when weighed with that opposed to it has more convincing force, and from which it results that a greater probabilityis in favor of the party upon whom the burden rests. It does not necessarily depend upon the number of witnesses; it merely means that the testimony which points to one conclusion appears to the trier of facts to be more credible than the testimony which points to the opposite one. The capacity of the submitted testimony to enforce belief on the arbiter to whom it is submitted is the touchstone of preponderance as applied to the testimony of witnesses. With this rule for our guidance, can we say affirmatively that the preponderance of the evidence as to the causal connection between the accident and the bronchial abscess is, as a matter of law, with the petitioner? Obviously, when two equally honest and experienced expert witnesses reach opposite conclusions, the only thing the trier of fact can do is to decide which one of these witnesses is more probably correct in his conclusion. In so doing, he...