Smith v. Industrial Commission

• Decision Date: 28 July 1943
• Docket Number: 6575
• Citation: 140 P.2d 314,104 Utah 318
• Court: Utah Supreme Court
• Parties: SMITH v. INDUSTRIAL COMMISSION et al

140 P.2d 314

104 Utah 318

SMITH v. INDUSTRIAL COMMISSION et al

No. 6575

Supreme Court of Utah

July 28, 1943

Original proceeding by E. Wesley Smith, claimant, opposed by Continental Building Company, employer, and Columbia Casualty Company, insurer, for a writ of certiorari to review a decision of the Industrial Commission denying claimant an award of compensation.

Order of Commission affirmed.

Robert Murray Stewart, of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and Arthur E. Moreton, of Salt Lake City, for defendants.

WADE Justice. WOLFE, C. J., and McDONOUGH, JJ., concur. LARSON Justice, MOFFAT, Justice, dissenting.

OPINION

WADE, Justice.

Plaintiff has applied for a writ of certiorari to review a decision of the Industrial Commission denying him an award of compensation for a hernia which he claims to have suffered during the course of his employment with the Continental Building Company as its building manager.

There are two questions to be determined: (1) Is the testimony of plaintiff so undisputed, uncontradicted, and of such persuasive force that the commission could not reasonably find that it was not true? (2) If the facts are as plaintiff's evidence tends to prove they are, could the commission reasonably conclude therefrom that claimant's hernia occurred on the stairway on March 18, 1942?

On the second question claimant's evidence tends to show: That on March 18, 1942, while descending the stairway in the course of his employment, claimant caught his heel and lost his balance and to prevent falling jumped about six steps to the landing below; that as he did so he caught the railing with his left hand, landed on left foot and fell against the wall, that thereupon he experienced a burning sensation in his groin which spread throughout his abdomen and he was nauseated; that the burning sensation lasted a day or two and the nausea a few hours; that his abdomen being still sore that evening while taking a shower he examined his body but finding no protrusions, swellings or outward indication that he had been injured he did not report it to his employer, nor lose any time from his work, nor did he consult a doctor. About June 7th he took a physical examination to join the army and it was discovered he had a hernia. On June 12th he reported his accident to his employer and on June 23rd he underwent an operation to correct this condition. The hernia did not protrude from his body, it was both direct and indirect, and from its nature and appearance and the tissue which was removed the doctor concluded that it could not have existed more than six months and might well have occurred on March 18th and been caused by the accident described by applicant. The doctor was also of the opinion that it probably could not be caused by coughing or ordinary bodily strain, but a fall and jerk such as applicant described on the stairs would be sufficient and that a burning sensation and nausea such as applicant described indicated that a hernia had been caused. Applicant further testified that he remembered of no other accident which could have caused it.

If these are the facts then the commission must conclude that applicant's hernia was caused by his fall on the stairway on March 18, 1942. No reasonable mind could conclude otherwise. Applicant's accident showed exactly the kind of physical strain which would likely cause a hernia, he experienced a burning sensation and nausea which are the usual symptoms thereof, the hernia was discovered within three months thereafter, which is within the time when it would probably be caused, there was no other accident which could have caused it. Of course it is possible that it was not so caused, but there it no other reasonable explanation of these facts. A fact may not be found on mere possibilities but must be based on evidence. From these facts there is no evidence to support a contrary finding.

Coming now to the first question which is: Could the commission reasonably find that applicant's testimony was not true? The proof of applicant's accident on the stairway and the details thereof, that he was nauseated and experienced a burning sensation and the time it lasted, that he examined himself in the shower and concluded that he was not injured, all depend entirely on applicant's uncorroborated testimony. By their nature these facts are known only to him and cannot be disputed by other witnesses. Applicant being an interested witness would it be unreasonable for the commission to disbelieve his testimony although it was not contradicted by the testimony of any other witness?

Before determining that question we must dispose of plaintiff's contention that defendant stipulated that these facts are true. Defendant's attorney at the opening of the hearing stated:

"We admit everything with the exception that he sustained a hernia under date of March 18, 1942."

This statement might be taken to go that far, but during the hearing the parties did not so treat it, and no one being misled thereby we hold that it did not constitute an admission of those facts.

The commission apparently concluded that plaintiff's testimony was inconsistent with other conceded facts in the case and on that ground denied his application. This appears from the following excerpt from the decision:

"Applicant's recital of an accident is denied, but there is no evidence in the record to the contrary. However, there are some very significant facts which we cannot overlook. Applicant continued on the job and made no report to his employer until after he went to Ft. Douglas for a physical examination on June 5 or 6, 1942. At that time he was advised by an army physician that he had a hernia. On June 7, 1942, he was examined by Dr. Silas S. Smith who confirmed the report of the army physician. Later on June 23, 1942, applicant went to the hospital for surgical treatment. He was discharged from the hospital on June 27, 1942, and went to work on August 7, 1942, for another employer, having left the defendant Continental Building Company employ on May 9, 1942.

"The record, therefore, shows that if applicant's contention is correct he suffered a hernia on March 18, 1942, and said nothing about it to his employer until sometime in June, 1942, or almost three months after the alleged injury. Mr. Smith was building manager and according to his own testimony made out reports of accident for other employees, and was thoroughly familiar with the requirements of the Workmen's Compensation Act. It is extremely difficult to understand why a man with Mr. Smith's intelligence and possessing a full knowledge of the requirements of the Workmen's Compensation Act, should neglect to report the accident and the injury to his employer. It is also quite significant that applicant was unaware of the existence of a hernia until he appeared at Ft. Douglas for a physical examination."

The facts which the commission found to be "significant" are not necessarily inconsistent with plaintiff's testimony. According to his testimony the accident was not of such a nature that would ordinarily cause a person to lose time from work. Nor is it unusual that he did not make a report of the accident to his employer. He testified that he examined his body and discovered no indication that he had been injured. This also explains why he was surprised when the army doctor discovered that he had a hernia. His testimony is, therefore, not in that regard so inherently improbable as to justify its disbelief. His testimony was not inherently improbable in other respects. His description of the accident might well happen to anyone; it is not improbable that it might happen while he was alone; his experiencing a burning sensation and nausea appears to be natural under such circumstances; it would be perfectly natural for him to examine his body that evening, and his conclusion that he was not injured is not unlikely under the circumstances, and if he did have such an accident he would remember it when he discovered he had a hernia. His testimony, therefore cannot be rejected on that ground.

The weakness of plaintiff's case is that there is no evidence other than his own testimony that he had any accident, or the details or effects thereof, and he is an interested witness. By the nature of the accident it is impossible to contradict his testimony. Such a situation presents an opportunity for imposition. A person who discovers he has a hernia can readily make up the details of a story which would prove that it was caused by an accident in the course of his employment. Under such circumstances he would naturally tell that it occurred while he was alone, he would describe the usual symptoms when a hernia is caused and would make a plausible explanation of why he did not report it sooner. The person making such a fabrication can do so knowing that no one can directly contradict his testimony. Under these circumstances would it be unreasonable for the commission to refuse to believe his story?

This question must be answered in the negative. Everyone recognizes that an interested witness is not entitled to as much credibility as one who is not interested. Prior to the 19th century, the testimony of parties and interested witnesses was considered so unreliable that they were not allowed to testify at all. 20 Cornell Law Quarterly 1934-35 p. 33; Wigmore on Evidence, 3rd Ed. §§ 575 to 578. By statutes in most states this rule has been abolished except that the "testimony of a survivor of a transaction with a decedent when offered against the latter's estate" is still inadmissible. Wigmore on Evidence, 3rd Ed., § 578; §§ 104-49-1 and 104-49-2, U. C. A. 1943. This exception indicated that the legislature still considers such testimony ...