Spring Canyon Coal Co. v. Industrial Commission of Utah

• Decision Date: 22 September 1921
• Docket Number: 3693
• Citation: 201 P. 173,58 Utah 608
• Court: Utah Supreme Court
• Parties: SPRING CANYON COAL CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

201 P. 173

58 Utah 608

SPRING CANYON COAL CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 3693

Supreme Court of Utah

September 22, 1921

Proceeding under the Workmen's Compensation Act by Marie Como, to recover compensation for the death of her husband Frank Como, employee, opposed by the Spring Canyon Coal Company, employer, and the State Insurance Fund. Compensation was awarded, and the employer and the State Insurance Fund bring a writ of review.

AWARD SET ASIDE AND ANNULLED.

Bagley Fabian, Clendenin & Judd, of Salt Lake City, for plaintiffs.

Harvey H. Cluff, Atty. Gen., and John R. Robertson, Asst. Atty Gen., for respondent.

FRICK, J. CORFMAN, C. J., RITCHIE, District Judge, and GIDEON, and THURMAN, JJ., concur. WEBER, J., being disqualified, did not participate.

OPINION

FRICK, J.

On August 27, 1920, one Marie Como, hereinafter called applicant, made application to the Industrial Commission of Utah hereinafter styled Commission, in which application she asked that the Spring Canyon Coal Company, as employer, or the State Insurance Fund, be required to pay compensation for the benefit of herself and her three minor children as the dependents of one Frank Como, her former husband, who, she alleged, suffered a personal injury from which he died on the 11th day of July, 1917, while he was in the employ of said company as a coal miner, and which injury and death she alleged arose out of and in the course of his employment. After a hearing two of the commissioners awarded the applicant compensation, which, including funeral expenses, amounted to $ 2,168.24. One of the commissioners dissented, upon the ground that the evidence was insufficient to authorize the Commission to award compensation in this case. Both the company and the State Insurance Fund, hereinafter called plaintiffs, applied to the Commission for a rehearing, which was denied, and they join in this application which is in the usual form, and ask that this court review the proceedings of the Commission, and that upon such review the award be set aside and annulled as not being authorized by our Industrial Act. The Commission filed a demurrer to the writ of review, and the case was submitted upon the demurrer.

The facts concerning the injury and death of the deceased were stipulated into the record before the Commission, and are as follows:

"That Frank Como, deceased, was, on the 11th day of July, 1917, employed by the Spring Canyon Coal Company at Storrs, Utah as a coal miner; that while employed decedent was attacked and killed by a fellow employee, John Augustino, at 9:45 a. m.; that the deceased was employed by the Spring Canyon Coal Company at the time of his death, an employer subject to the provisions of chapter 100, Laws Utah 1917."

In addition to the foregoing stipulated facts there appear in the record copies of statements as follows: A statement from W. L. Sutherland, who, it seems, was the attending physician, who states that the deceased was killed as stated in the stipulation of facts, and that "John Augustino was bound over to await the action of the grand jury, and we understand has since been committed to the State Mental Hospital at Provo, Utah." It further appears from the statement that Frank Como was injured on July 11, 1917; that he was "hit on head with coal shovel several times by partner in mine"; that the injuries consisted of "several deep gashes about head, skull fractured," and that "death was instantaneous." There is also a copy of an unidentified letter purporting to be from the superintendent of the State Mental Hospital at Provo, Utah which is addressed to the "manager of the State Insurance Fund." In that letter it is stated that one John Arostino was received as a patient at the State Mental Hospital on "August 1, 1917 * * *; when received here he was in an extreme catatonic state, from which he has apparently recovered. He is, however, afflicted with dementia praecox from which we cannot expect recovery. There is no question in my mind that he had dementia praecox for considerable time before he committed crime." We assume the Arostino referred to in the letter to be the same individual who in the record is otherwise called Augustino.

In view of the foregoing state of the record there is a sharp conflict between the attorneys for plaintiffs and the Attorney General, who represents the Commission, and incidentally the applicant, with respect to what ultimate facts the evidence which was before the Commission established. The attorneys for plaintiffs contend that there was no evidence before the Commission except what is contained in the stipulation of facts, while the Attorney General, stating it in his own language, insists that the probative facts before the Commission were the following:

"That Frank Como, deceased, was killed on the 11th day of July, 1917, by a fellow employee; that this fellow employee was on the 1st day of August, 1917, committed to the State Mental Hospital. It was admitted that the decedent at the time he met his death was an employee of Spring Canyon Coal Company, and that at the time of the accident was engaged in the actual performance of his employment as a miner."

In view of the facts stated by the Attorney General he states his legal conclusion thus:

"Under these circumstances the question is not, as the plaintiffs contend, whether the accident arose out of and in the course of the employment, but was the Commission, under the circumstances, justified in inferring that Frank Como was killed by accident arising out of and in the course of the employment--two very different questions."

In view of the conflicting views of counsel we have given all of the material facts appearing in the record although it may well be, as contended by them, that some of the statements appearing in the purported statements and in the letters, strictly speaking, may not be competent evidence. For the burden is again upon the applicant to prove that the act as stated by the Attorney General have been established.

In making the foregoing statement we have excluded other jurisdictional facts, such as the marriage of the decedent and the applicant and the birth of children, etc., none of which is questioned.

Counsel for plaintiffs insist that the foregoing facts, together with the inferences that may be legitimately deduced therefrom, are wholly insufficient to justify the award made by the majority of the Commission. At the time the deceased was killed, as hereinbefore stated, our statute (Comp. Laws Utah 1917, § 3113) provided that compensation shall be made to an employee who receives personal injury which is caused "by accident arising out of and in the course of his employment." The statute also provided:

"The words 'personal injury by accident arising out of and in the course of employment' shall include an injury caused by the willful act of a third person directed against an employe because of his employment." Section 3112.

Counsel for plaintiffs contend that the burden is upon the applicant to prove that the injury was caused by an accident arising out of and in the course of the employment, and further, that where it is shown without dispute, as here, that the injury which caused death was inflicted by a third person the burden is again upon the applicant to prove that the act of such third person was directed against the employee (the deceased in this case) because of his employment.

While the Attorney General concedes that the burden is upon the applicant to establish the facts as contended for by counsel for plaintiffs, he nevertheless insists that the ultimate facts may be inferred from the evidentiary facts and circumstances, and that the facts hereinbefore referred to were sufficient to authorize the Commission to make the award. He insists that inferences may be deduced from circumstantial evidence as well as from positive or direct statements. He further contends that, where two inferences may be deduced from the established or conceded facts and circumstances, one of which is favorable to the applicant and the other against him, and both of which inferences are equally reasonable, the Commission may elect which inference it will adopt, and that we are bound by the inference the Commission adopts. In referring to plaintiffs' contentions and to the "weakness of plaintiffs' position," the Attorney General's views are reflected in his printed brief in the following words:

"They say we can easily infer that the assault was provoked by some personal grievance against Como 'due to causes wholly disconnected from their employment.' Of course, this is true, but is it not just as easy to infer that Como's death arose from a dispute which arose out of the employment as it is to infer that the assault was due 'to some personal grievance against Como?' Surely it is. So it is clearly seen that the finding of the Commission that the accident arose out of and in the course of the employment is based wholly upon an inference, and must, of necessity, be based upon an inference. How are the plaintiffs going to show that this inference is wrong? How can the court set the finding of the Commission aside without substituting its inference as to what happened for the Commission's inference as to what happened?"

It is only fair to the Attorney General to add that at the hearing upon the demurrer he, in his oral argument, further collaborated his position by stating that, while plaintiffs' contention that where two inferences may be deduced from facts and circumstances, one of which would make the employer liable while the other would not, the ultimate fact fixing liability would not be considered as established in courts of justice, yet the same rule does not apply to the Commission in...