Johnson v. Industrial Commission of Arizona

• Decision Date: 28 January 1929
• Docket Number: Civil 2765
• Citation: 35 Ariz. 19,274 P. 161
• Parties: PAULA M. JOHNSON, HENRY VICTOR JOHNSON and WOODROW VICTOR JOHNSON, Petitioners, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent
• Court: Arizona Supreme Court

274 P. 161

35 Ariz. 19

PAULA M. JOHNSON, HENRY VICTOR JOHNSON and WOODROW VICTOR JOHNSON, Petitioners, v. THE INDUSTRIAL COMMISSION OF ARIZONA, Respondent

Civil No. 2765

Supreme Court of Arizona

January 28, 1929

Original proceeding on Writ of Certiorari. Award of Industrial Commission affirmed.

Mr Thomas W. Nealon and Mr. W. F. Dains, for Petitioners.

Mr John J. Taheny, for Respondent.

OPINION

LOCKWOOD, C. J.

Petitioners in this case are claiming compensation for the death of Clark Victor Johnson, who was found dead on the seventeenth day of February, 1928, at the bottom of a shaft of a mine of the Magma Copper Company, by which company he was then employed. The matter was submitted to the Industrial Commission upon a full hearing of all the facts, and the Commission found that the evidence was insufficient to show his death was caused by an accident arising out of and in the due course of his employment. A rehearing was granted, petitioners being represented by counsel, and after consideration the Commission affirmed its former ruling, and petitioners have applied for a writ of certiorari to this court in accordance with statute.

It is the contention of petitioners that decedent, while in the due course of his employment, accidently fell into a mining shaft on the premises of the Magma Copper Company and by such fall was killed. If this be so, they are entitled to recover. It is the position of the Industrial Commission that the evidence shows the deceased abandoned his employment and endeavored to commit suicide, and that as a result of such attempt he fell down the shaft, which fall was the immediate cause of his death. If such be the truth, the finding of the Commission is proper.

Under the Compensation Act (Laws 1925, chap. 83) petitioners must show affirmatively by a reasonable preponderance of the evidence that the death arose both out of and in the due course of the employment. In re McNicol, 215 Mass. 497, L.R.A. 1916A 306, 102 N.E. 697; Ocean Accident & Guarantee Co. v. Industrial Commission, 32 Ariz. 265, 257 P. 641.

If the evidence is such that a reasonable man could reach a conclusion therefrom either way on such issues, the decision of the Commission on the facts has the same force and effect as the finding of a jury, and will not be disturbed by us. Federal Mutual Liability Ins. Co. v. Industrial Commission, 31 Ariz. 224, 252 P. 512.

With these two principles of law to guide us, let us examine the evidence.

Deceased was a pumpman, employed for several months at a station on the 2,000-foot level of the Magma Copper Company's mine. The station was about 150 feet from the shaft and visible from the hoisting cage, and at 4 P.M. the day of his death he was observed at his work; but no one thereafter saw him alive. Shortly after 6 P.M. his body was found at the bottom of the shaft, some 600 feet below his place of work. The shaft was a three-compartment one, cages running in two compartments, and the third being a manway with ladders through which the miners could ascend and descend on foot. The compartments were separated by what is known as "dividers," these being heavy 10 by 10 timbers, spaced about 4 feet apart, and it would be very improbable a man could fall down one compartment and bounce across into the other without some marks showing on the dividers, as they were covered with dust. No such marks were found thereon.

Johnson was found at the bottom of what is known as the "number one hoisting compartment." In the No. 2 compartment alongside, the blade of a straight razor with fresh blood stains thereon was found, while two sides of a razor handle were lying on one of the timbers on one side of the shaft. A heavy wooden bar was used as a guard-rail across the No. 2 compartment on the 2,000-foot level. This bar was unquestionably in place at the time Johnson went to work, and in order to remove it, it was...