Southern Pac. Co. v. Industrial Commission

• Decision Date: 03 March 1939
• Docket Number: 6052
• Citation: 87 P.2d 811,96 Utah 510
• Court: Utah Supreme Court
• Parties: SOUTHERN PAC. CO. v. INDUSTRIAL COMMISSION et al

87 P.2d 811

96 Utah 510

SOUTHERN PAC. CO. v. INDUSTRIAL COMMISSION et al

No. 6052

Supreme Court of Utah

March 3, 1939

Original proceeding by the Southern Pacific Company against the Industrial Commission of Utah and another to review an order of the commission awarding death benefits to Laura Southwick an account of the death of her husband, William David Southwick.

AFFIRMED.

Bagley Judd, Ray, & Nebeker and Thornley K. Swan, all of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and George H. Lowe, of Ogden, for defendants.

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

OPINION

WOLFE, Justice.

This is an application to review an order of the Industrial Commission awarding death benefits to defendantLaura Southwick, on account of the death of her husband, William David Southwick.The Southern Pacific Company, petitioner herein, is a self insurer under the Workmen's Compensation Act(Rev. St. 1933, 42-1-1 et seq.).

Southwick was employed by the Southern Pacific Company as a boiler maker.On the morning of February 2, 1938, he was sent to procure a sheet of metal from the iron shop.Sometime later his body was found by a fellow workman.He was found in a standing position pressed by two of the metal sheets against the south wall of the building.About four feet north of the south wall of the building, and running parallel thereto, is a low partition wall against which the sheets of metal leaned.The south wall is constructed of heavy timber vertical studs on the outside of which is nailed a cover of thin corrugated sheet iron or tin.Southwick's body was found between two of the upright studs and pinned against the corrugated wall by the two metal sheets which were resting against his chest and against two upright studs.His back was up against and bulging out the south tin wall of the building.His head was slumped down over the metal sheets, his hands by his sides.The top of the metal sheets where it came in contact with the body was about four feet high, pressing directly across Southwick's chest.His body was not slumped to one side or the other but was in a fairly upright position.We insert here a reproduction of a photograph taken of another person who assumed as nearly as possible the exact position in which Southwick was found.A glance at it will be more informative than a page of description.

[SEE DIAGRAM IN ORIGINAL]

There was not much weight against his chest because of the timber uprights on each side of the body which took most of the weight of the metal sheets.The timbers were of sufficient thickness that Southwick's body was held firmly by the sheets of metal against the south wall without having broken any bones.The physicians who performed the autopsy found no external evidences of injury except a small scalp wound and a slight discoloration of the skin over one shoulder blade.

The Industrial Commission made a finding in favor of the applicant, Laura Southwick, as follows:

"On the 2nd day of February, 1938William David Southwick, while in the course of his employment as boiler maker at Ogden, Utah, by the defendant, Southern Pacific Company, suffered an accidental injury in the following manner: While in the act of selecting sheet metal plates, two sheets fell against him pinning him against wall of building, bruising head and chest; said injuries being the exciting or proximate cause of his immediate death."

It is contended on behalf of plaintiff that this finding cannot be upheld; that there is no substantial or competent evidence in the record to sustain the finding of the commission; that the only way by which the commission could have arrived at such a conclusion is by speculation and conjecture; and finally, that the evidence clearly shows Southwick died as a result of natural causes and not as a result of an accident.

In a case such as this, where it is contended that the evidence does not support the finding of the commission, it is the duty of this court to examine the entire record, and if the court finds any substantial competent evidence in support of the commission's finding of a material fact the decision will not be disturbed.Bingham Mines Co. v. Allsop, 59 Utah 306, 203 P. 644;Cudahy Packing Co. v. Brown, 61 Utah 29, 210 P. 608;Norris v. Industrial Commission, 90 Utah 256, 61 P.2d 413;Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1.And every legitimate inference which can be drawn from the evidence must be drawn in favor of an applicant where the Industrial Commission has made an award in his favor.Continental Cas. Co. v. Industrial Commission, 75 Utah 220, 284 P. 313.It has also been repeatedly held by this court that a material finding of the Industrial Commission cannot be based entirely on hearsay or incompetent evidence.Park City v. Industrial Commission, 63 Utah 205, 224 P. 655;Garfield Smelting Co. v. Industrial Commission, 53 Utah 133, 178 P. 57;Cudahy Packing Co. v. Brown, supra.Nor can an award rest on mere conjecture.Continental Cas. Co. v. Industrial Commission, supra.

Is there any support for the conclusion of the Industrial Commission in this case, to the effect that Southwick's death was caused by an accident arising out of and in the course of his employment?An autopsy was performed by the company doctor, Dr. Morrell, and Dr. Schelm, a pathologist from the Dee Hospital.They testified that the death was due to an acute dilation of the heart.There were no fractures in the body anywhere, and no evidence of hemorrhage or asphyxiation.They further testified that Southwick's heart was badly diseased and that this alone could have been the cause of his death.It would have been possible for him to have died suddenly without any external cause.Dr. Morrell testified that Southwick's kidney (he had only one, the other having been removed several years previously) was badly diseased and that this also was sufficient in and of itself to cause death suddenly.While Dr. Schelm said that he did not think the condition of the kidney was sufficient to cause death, yet from an examination of the heart he felt that deceased could have died suddenly without any external shock or injury.In fact, he testified that from a mere examination of the body, without knowing the circumstances under which it was found, he would have concluded that Southwick died from natural causes, there being no evidence of any injury sufficient to cause death.All of this evidence tends to uphold the theory of plaintiff that Southwick died from natural causes.Is there any evidence to support the theory that he met his death as a result of an accident?

Although deceased had been ill at various times in the past, his wife testified that for some time he had been in apparent good health; that there appeared to be nothing the matter with him on the morning of his death.He had gone about his regular work and had made no complaint to anyone of illness or weakened condition.He was sent to get a sheet of metal from the boiler shop.These sheets of metal weight over 500 pounds each and are kept in the passageway, heretofore spoken of, leaning against the low partition on the north side.When Southwick was found, two of these sheets were leaning over against the timbers along the south wall, pinning Southwick's body between them and the wall.

There was no eye witness to what happened, but the facts and circumstances surrounding Southwick's death, including the position in which he was found, give some support to a conclusion that there was an accident which caused his death.If there is circumstantial evidence showing there was an accident and that the accident caused the death, it is sufficient to uphold a finding of the commission to that effect.Supica v. Armour & Co., 131 Kan. 756, 293 P. 483;Kearns v. Reed, 136 Kan. 36, 12 P.2d 820;Union Oil Company v. Industrial Accident Commission, 211 Cal. 398, 295 P. 513.In Kearns v. Reed, supra, the court said:

"Appellants have cited many pertinent authorities from this and other jurisdictions, holding it to be necessary for the claimant to establish these features [whether there was an accident arising out of and in the course of employment] by sufficient evidence before being entitled to an award of compensation, and then in the absence of eyewitnesses, suggest other plausible theories all of which could be said to be sustained to some extent by the circumstantial evidence.If the rules of evidence in cases of this character required such a degree of certainty as to exclude every other reasonable conclusion, it would be almost impossible to make a finding based largely upon circumstantial evidence.But it was held otherwise in the recent case of Supica v. Armour & Co., 131 Kan. 756, 293 P. 483, 484, where it was said: 'In a compensation case, it is not required that the claimant shall establish his right to an award by direct evidence alone.Circumstantial evidence may be used to establish the claim, and it is not necessary that the circumstantial evidence should arise to that degree of certainty as to exclude every reasonable conclusion, other than that found by the trial court.'"[136 Kan. 36, 12 P.2d 820.]

In the cases above cited the question was chiefly whether there was an accident arising out of and in the course of employment, while here the question is whether there was an accident which caused Southwick's death, it being admitted that Southwick was in the course of his employment when he met his death.

As to the amount of proof necessary to sustain a finding of the Industrial Commission that there was an accident causing death, this court said in Bingham Mines Co. v. Allsop, supra, at page 645 of 203 P.:

"It was incumbent upon the beneficiaries to prove that

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