Pierce v. Phelps Dodge Corp., Civil 3348

• Decision Date: 22 November 1933
• Docket Number: Civil 3348
• Citation: 42 Ariz. 436,26 P.2d 1017
• Parties: TERESA PIERCE, Widow of MORRIS PIERCE, Deceased, FRED MALLORY PIERCE, BEATRICE, PIERCE, ALICE PIERCE, IRENE PIERCE, Children of Said Deceased, MORRIS PIERCE, Petitioners, v. PHELPS DODGE CORPORATION, Defendant, Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier
• Court: Arizona Supreme Court

26 P.2d 1017

42 Ariz. 436

TERESA PIERCE, Widow of MORRIS PIERCE, Deceased, FRED MALLORY PIERCE, BEATRICE, PIERCE, ALICE PIERCE, IRENE PIERCE, Children of Said Deceased, MORRIS PIERCE, Petitioners, v. PHELPS DODGE CORPORATION, Defendant, Employer; THE INDUSTRIAL COMMISSION OF ARIZONA, Defendant Insurance Carrier

Civil No. 3348

Supreme Court of Arizona

November 22, 1933

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

Mr John J. McCullough, for Petitioners.

Mr. Don C. Babbitt and Mr. Emil Wachtel, for Defendant Insurance Carrier.

OPINION

LOCKWOOD, J.

This case comes before us on a writ of certiorari granted to Teresa Pierce, for herself as widow, and also as representative of four minor children, reviewing an award of the Industrial Commission of Arizona denying compensation for the death of Morris Pierce, her husband, hereinafter called deceased.

There are two questions only for our consideration in the matter First, what was the cause of the death of Morris Pierce, and second, was it such as to render the death subject to compensation. The Industrial Commission in making its award found as follows:

"That the evidence is insufficient to establish that said deceased suffered 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 said death was proximately the result of injury by accident arising out of and in the course of his employment."

We, of course, give to the findings of fact, actual or presumptive of the Industrial Commission the same credit which we do to the verdict of a jury or the findings of a trial court. Blankenship v. Industrial Commission, 34 Ariz. 2, 267 P. 203; Federal Mutual Liability Ins. Co. v. Industrial Commission, 31 Ariz. 224, 252 P. 512. This, however, does not apply to conclusions of law, and we think that the finding above quoted is rather a conclusion of law than a finding of fact. It does not state the cause of the death of Morris Pierce, or even that it is impossible to ascertain what the cause was. It merely says that as a matter of law the evidence is insufficient to establish that the death was a result of injury by accident arising out of and in the course of employment. We are therefore in the position in which we frequently find ourselves, of having before us a judgment with no formal findings of fact made by the court, from which we can determine whether such findings support the judgment. In this case it is our rule that if from the evidence findings could be made which reasonably support the judgment we will assume that such were the actual findings of the trial court. Blackford v. Neaves, 23 Ariz. 501, 205 P. 587; Thomas v. Newcomb, 26 Ariz. 47, 221 P. 226. And we think the same rule should apply to an award of the Industrial Commission.

We turn, therefore, to the evidence. The undisputed facts show that deceased at the time of his death was about the age of thirty-five years, and had been for a number of years employed as a miner by the Phelps Dodge Corporation. There is also evidence that for some time he had been suffering from myocarditis, and had been so informed by a physician. His usual work required him as a shift boss to do a great deal of walking through the various underground passages of the mine, and to climb up and down many ladders. He performed this work in the ordinary manner during all of the morning of the 25th of February, 1930, without showing any bad effects or making any complaint. When the noon hour arrived he sat down to eat his lunch and had just finished the meal when he arose from a sitting or reclining position, walked a few hundred feet, and suddenly collapsed, and died a few moments thereafter. There is no evidence that during this walk he sustained any accident or that anything untoward happened which contributed to his death, except in so far as the mere walking itself may have done so. There was a post-mortem examination, not amounting to an autopsy, made shortly after the death, and the three doctors who made it certified that in their opinion, ". . . deceased died from natural causes and our diagnosis is that death was caused by acute dilatation of the heart as the result of myocardial changes."

At the hearing before the Industrial Commission three physicians testified, Dr. H. J. French, who was one of the doctors signing the death certificate, and Drs. Z. Causey and Robert Ferguson, who testified merely as expert medical witnesses, and their evidence is all that we have as to the cause of death. They all agree that from the facts appearing in evidence it must have been myocarditis, a disease of the muscles of the heart, and, indeed, this is not disputed but admitted by petitioner. It is her contention, however, that this disease was aggravated by the work necessarily performed by deceased, and his death accelerated by reason of such work. In determining whether this be true, we necessarily must review the testimony of the physicians.

Doctor French testified in substance that there are two kinds of myocarditis, one the acute form where a man may be in apparent perfect health and suddenly succumb to an acute dilatation of the heart due to muscular changes, and the other gradual, wherein the patient slowly becomes worse and finally dies regardless of whether he indulges in muscular exertion or not. He also testified that deceased did not die of the second kind but of the first, or acute dilatation. Asked in regard to the effect of violent muscular exertion, such as that admittedly and necessarily performed by deceased in the usual course of his duties, or other causes in accelerating the progress of an acute dilatation, he said, in substance, that anything which increased the action of the heart would aggravate the condition and accelerate death whether it were muscular exertion, excitement or emotion, or anything else, but that in his opinion the work which deceased performed did not have much bearing on his sudden death, though it might have had some.

Doctor Causey did not know personally of the cause of death of deceased, but answered in regard to hypothetical questions, which stated fairly the facts in regard to deceased's physical condition on the morning of his death, and the work which he did, that such work in his opinion accelerated and aggravated his heart condition and brought about his death sooner than he would have died if he had not performed the work.

Doctor Robert Ferguson also testified that the eating of a meal would accelerate heart action, and that the climbing of a ladder, such as it is admitted deceased climbed during the morning, would be very bad for a man with advanced myocarditis, and that such a man should not work underground or do any kind of severe and strenuous work or climbing, and should rest both before and after meals, but did not state specifically whether work of the kind which deceased was performing would accelerate his death; his answer to such a question being: "If he had any heart trouble he shouldn't do any climbing, i should say."

We think that all of this testimony, taken together, leads unmistakably to the conclusion that while the deceased died of acute myocarditis, that his death was accelerated at least to some degree by the ordinary and usual conditions of the work which he was required to and did do, but not by any sudden or extraordinary strain or fortuitous happening.

The question then before us is whether death from a pre-existing heart disease, which is accelerated by the ordinary and usual conditions of the occupation of the employee and not by any sudden, unusual, or unexpected strain or happening, is subject to compensation under our law. Section 1421, Revised Code of 1928, which is the basis for recovery under the Arizona Workmen's Compensation Act, reads, so far as material, as follows:

". . . Every employee, hereinbefore designated, who is injured, and the dependents of every such employee who is killed, by accident arising out of and in the course of his employment, wheresoever such injury has occurred, unless purposely self-inflicted, shall be entitled to receive, and shall be paid such compensation . . . , as are herein provided."

There is no doubt that deceased in this case was engaged in the course of his employment at the time of his death. The question is whether he was "injured (killed) by accident arising out of . . . his employment."

We come then to the interpretation of the phrase "injured by accident"...