Robertson v. Industrial Commission

• Court: Utah Supreme Court
• Writing for the Court: McDonough, Justice.
• Citation: Robertson v. Industrial Commission, 109 Utah 25, 163 P.2d 331 (Utah 1945)
• Decision Date: 21 November 1945
• Docket Number: 6820
• Parties: ROBERTSON et al. v. INDUSTRIAL COMMISSION et al

163 P.2d 331

109 Utah 25

ROBERTSON et al. v. INDUSTRIAL COMMISSION et al

No. 6820

Supreme Court of Utah

November 21, 1945

Decision and order vacated.

Gaylen S. Young, of Salt Lake City, for plaintiffs.

Grover A. Giles, Atty. Gen., for defendants.

F. A Trottier, of Salt Lake City, for State Insurance Fund.

McDonough Justice. Turner, J., concurs. Wade, Justice (concurring with the result) Larson, Chief Justice (dissenting). Wolfe Justice (dissenting).

OPINION

McDonough, Justice.

Certiorari to review order of Industrial Commission denying application for an award. The fact are not in dispute.

Eli A. Robertson was an employee of Colorado Animal By-Products Company for several years prior to his death on September 26, 1943. He had never lost any time by reason of illness. On the day in question he left his home at Spanish Fork in apparently good health, and entered the plant of his employer. He and one James Francom wheeled 3 or 4 loads of coal in a wheelbarrow into the furnace room, which consumed about a half-hour. They then dragged and pulled a large dead horse onto a skinning block by means of a mechanical winch. They hooked a cable onto one or both of the fore feet to raise the carcass partially into the air, to facilitate skinning operations.

Mr. Francom worked on one side and the deceased was skinning on the other side. The carcass weighed 1800 pounds. The plant received such a large carcass only occasionally. Sometimes it was quite an effort to pull the horse over on its back. The floor was slippery and wet. The deceased generally braced himself when he tried to pull on one of the legs of the carcass to turn it over or toward him. According to Francom, a fellow worker, the only eyewitness, at the time in question Robertson took hold of one of the hind legs of the carcass after bracing himself and pulled on it, exerting himself quite heavily. Francom observed that Robertson's jugular vein swelled up and that he turned red and flushed in the face, with purple coloring around the mouth "like he wasin awful distress," and an expression of pain came on his face. He released his hold on the leg of the horse and exclaimed, "Has Andy got the cooker open; I am just suffocating." He then went out of doors. Francom presently came out to see what was the matter. He found Robertson lying down leaning on his elbow. Robertson was still flushed, and putting his hand on his chest stated that his chest pained him. He stated that, "I about passed out up there." About 30 minutes later he drove home. He told Francom he thought he could manage to drive home without assistance.

When Robertson arrived at his home his daughter observed that he looked pale. He complained of severe pains in his chest and down his arms. A doctor was called, but Robertson died before the doctor arrived. No autopsy was performed. The physician who reported the facts for the death certificate stated that cause of death was unknown, but from natural causes.

Application was made to the Industrial Commission for compensation for death, on the ground that the deceased suffered an acute heart affliction resulting from overexertion while pulling on the leg of a dead horse, during the course of his employment.

While the two physicians who testified at the hearing stated they were uncertain as to the exact cause of death, Dr. J. W. Hagan testified,

"it was a heart condition; in my opinion he had coronary occlusion," and that such opinion was based upon the symptoms described to him; that such condition occurred several hours prior to death. This doctor was acquainted with deceased but had never treated him. He further testified that in his opinion the attack came on suddenly. In response to a hypothetical question, Dr. Merrill L. Oldroyd, on the basis of the testimony of other witnesses stated that,

"the only way to determine the cause of death would be by autopsy, but I would assume he sustained an acute heart affliction."

When asked whether he had an opinion as to the cause he stated,

"I would assume it was brought on by overexertion if it came on suddenly while he was at work."

He further testified that,

"assuming that the man had never had any illness, and if he had had an examination and was found to be normal, I would assume it would be the overexertion that caused his heart condition."

Since there was no conflict in the testimony, we direct our attention to the decision of the commission, and the reasons stated therein for denying the award. The commission stated that both doctors testified that they thought death may have been caused by a coronary occlusion,

28 "but it was made quite clear by both Dr. Hagan and Dr. Oldroyd that they were in substantial doubt as to the cause of death, and that the cause could only have been accurately determined by an autopsy which the widow did not desire to have performed."

The evidence does not show that anyone suggested to the widow that an autopsy be performed. Furthermore, the hereinabove quoted statements of the doctors reveal that while an autopsy might have accurately disclosed the precise cause of death, both doctors were of the opinion that the deceased suffered an acute heart affliction shortly before his death.

We quote further from the decision of the commission:

"Was the exertion sufficient to justify a finding that the heart attack or whatever it was that caused the death of decedent, was the result of the exertion? We think not. A cursory reading of the testimony of Mr. Hicken might lead one to believe that deceased actually completely turned over a dead horse weighing 1800 pounds. We must admit, that if deceased in fact reached over, took hold of a hind leg and pulled the horse over, he certainly must have exerted himself very substantially. However, a more careful reading of the testimony indicates rather clearly that deceased did not exert himself to any appreciable extent. What he did was take hold of one of the hind legs of the horse and pull it toward him so that he could skin the inner side of the leg. This we think would not require sufficient exertion to bring on a heart attack.

"* * * In the instant case, the testimony, such as it is, would require a finding that the deceased Robertson had a normal heart. We are therefore requested to find that ordinary exertion caused a coronary occlusion in a normal heart. This we are unable to do."

Our first task is to determine whether the evidence shows just ordinary exertion, and whether the testimony of witnesses is properly reflected in the decision. As to the medical testimony, it seems clear to us that the commission misconceived the import thereof. As to the facts relating to exertion, we quote from the testimony of Francom who was the only eyewitness. After explaining some of the preliminaries to skinning operations, Francom testified that the deceased took hold of the hind leg of the carcass to

"pull him kind of over onto his back when he said 'Has Andy got one of those cookers open?' * * * He was flushed in the face and purple around the mouth."

"Q. Explain what he was doing; what physical symptoms you observed with respect to color and distress, and what he said to you. You said he was skinning a horse and he took hold of the hind legs?

A. Took hold of a hind leg to straighten it up so he could skin down the hind leg.

"Q. Would you say whether he exerted himself heavily? A. He could have done.

"Q. It is your opinion he did? A. Yes.

"Q. Had he completed the straightening of the horse up; and then what happened? A. He just let go of the horse and said 'Has Andy got that cooker open?' I looked at him and he was purple around the mouth like he was in awful distress.

"Q. Did he say anything about having difficulty in breathing? A. No.

"Q. Did he appear to have difficulty in breathing? A. Yes, he did."

On cross-examination Francom testified that this particular horse was an unusually large horse; that he had worked on horses before that large, but had difficulty in doing so, although nothing ever happened before.

"Q. Was there any more strain on this particular horse than there was on any other large horses you had? A. I could not say as to that. He was laying kind of over on the floor and he wanted to pull him on his back like and open up that leg and skin down the leg.

* * * * *

"Q. So far as pushing or moving this horse is concerned there was nothing occurred in doing that which was anything other than the ordinary expected condition as you saw it? A. Yes; he just exerted himself a little bit more than he had on any other.

"Q. How do you know that? A. Because I seen him brace himself to pull the horse.

"Q. Didn't he often brace himself to pull a horse? A. Yes, usually would.

"Q. Did he brace himself to pull that horse during this same operation before? A. Yes."

Then on redirect examination Francom testified:

"Q. I think you stated, Mr. Francom, that he seemed to exert himself quite heavily? A. Yes, because he was a large horse."

Unfortunately, the record is silent as to the approximate angle of the carcass,which fore foot was suspended and the angle of the hind leg on which Robertson pulled, and with reference to which objects he braced himself. Inasmuch as the commission has not questioned the credibility of any of the facts testified to by Francom (although by inadvertence the commission mentioned the name of Hicken instead), and the commission merely attempted to summarize what Francom said, we must assume that the commission believed his testimony. The commission also concluded that

"if the deceased in fact reached over, took hold of a hind leg and pulled the horse over, he certainly must have exerted himself very substantially."

The commission concluded that the testimony...