Utah-Idaho Sugar Co. v. Industrial Commission of Utah

• Decision Date: 16 January 1928
• Docket Number: 4599
• Citation: 71 Utah 190,263 P. 746
• Court: Utah Supreme Court
• Parties: UTAH-IDAHO SUGAR CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

263 P. 746

71 Utah 190

UTAH-IDAHO SUGAR CO. et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4599

Supreme Court of Utah

January 16, 1928

Original proceeding by the Utah-Idaho Sugar Company and another against the Industrial Commission of Utah and another to review an award of compensation made by the named defendant.

AWARD SUSTAINED.

Young &amp Boyle, of Salt Lake City, for plaintiffs.

Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty Gen., for defendants.

THURMAN C. J. CHERRY and GIDEON, JJ., and RITCHIE, District Judge, concur. STRAUP, J., dissenting.

OPINION

THURMAN, C. J.

This is a proceeding to review an award of compensation made by the defendant Utah Industrial Commission in favor of the dependents of John H. Thomas, deceased.

Mrs. Bell Thomas, the widow of deceased, on August 21, 1926, filed with the commission her application for compensation from which it appears that on November 23, 1925, her husband, John H. Thomas, was injured by reason of an accident arising out of or in the course of his employment with the Utah-Idaho Sugar Company, and that as a result of such injury he died on July 14, 1926. The sugar company was an employer within the Utah Industrial Act (Comp. Laws 1917, §§ 3061-3165), and the plaintiff Hartford Accident & Indemnity Company carried the insurance. It is admitted that the deceased on the date of the alleged injury was in the employment of the plaintiff sugar company and was being paid wages in the sum of $ 4 per day. Plaintiffs, however, deny that the deceased was injured in the course of such employment or that his death resulted therefrom. Hearings were had before the commission on the issues, presented at which all parties interested were represented. The commission, having heard and considered the evidence, both oral and documentary, on May 4, 1926, made and entered its findings and award in favor of the applicant.

The plaintiffs here challenge the validity of the following findings on the grounds that there is no substantial evidence to sustain them:

"(2) That on the 23d day of November, 1925, John H. Thomas was engaged by the defendant employer in laying flumes, and while thus engaged and while in a stooping position astraddle of a flume, at about 10 o'clock a. m. of said day, he was struck in the back of the neck by a hard beet or beets, which fell from the high line or track that was from 8 to 10 feet above him. That at the time of being so struck Mr. Thomas cried out to one J. E. Jones, a fellow employee, who was then on the said truck above him: 'Jack, what in the hell are you doing * * * You are knocking beets down on me.' And in response to the question by Jones: 'What's the matter?' Thomas said: 'That beet hurt me.' That Mr. Thomas was obliged to sit down as a consequence of being struck by the said beet, and shortly thereafter as a further consequence his speech was affected, and he could not swallow his food at the noon hour following. That he was thereupon taken to his home by Stanley Lewis, construction foreman of the said sugar company, and Dr. Joseph Hughes was called and came to attend upon Mr. Thomas about between 12 and 1 o'clock p. m. of said day. That at the time Dr. Hughes saw him he was unable to talk and was prostrated and had evidence of having met with a severe injury. The doctor called upon Thomas the next day and then found his condition to be such that his speech had not returned and he had difficulty in swallowing and showed stiffening on the face on the right side; that these symptoms of paralysis persisted for a long while--up until the latter part of December, 1925, when they began to abate--paralysis of speech and general loss of control of himself.

'(3) That after the said injury of November 23, 1925, Mr. Thomas never regained his health, and at best was able thereafter to perform only light work of a clerical nature. That for several years prior to the said injury of November 23, 1925, Mr. Thomas was a member of the fire department of Spanish Fork, Utah, and took part in the regular drills and performed the other physical requirements incident thereto, including the climbing of fire ladders from 40 to 50 feet high, and experienced no difficulty in the performance of this work, and never exhibited any signs of being in any way physically disabled to execute his said duties, and up to the time of his said accident is shown to have been able-bodied man and to have performed his work at the sugar factory in a satisfactory manner and to have done equal labor and kept up his end of the job along with the other men similarly employed; but that after November 23, 1925, the date that Mr. Thomas was struck in the back of the neck by the said beet or beets he was seriously disabled and never fully recovered from the said injury then and there sustained as aforesaid, and finally he died on July 14, 1926, as a result of the said accident sustained by him on November 23, 1925."

Two questions of fact are presented for determination: (1) Was the deceased, John H. Thomas, injured by means of an accident while in the course of his employment November 23, 1925? (2) If he was so injured, was such injury the cause, or a contributory cause, of his death which occurred July 14, 1926?

In order to determine these questions, it is necessary to briefly state the substance of the evidence relied on in support of the award. There is substantial evidence to the effect that on November 23, 1925, deceased and a companion, who was a witness in the case were working together for the plaintiff sugar company, laying flumes; that while engaged in said work witness had occasion to cross a crib of sugar beets situated above where deceased was sitting "astraddle of the flume," when deceased "hollered" and said, "Jack, you are knocking beets down on me." Witness told him he had better come out. He saw deceased about a half hour later sitting down and upon inquiry as to what was the matter deceased said, "That beet hurt me." A short time later witness saw deceased again, and deceased could not talk to him--"his jaws were locked." Witness called some of the boys to take deceased home. He saw deceased at his home about a month later and he was in "bad shape." The witness did not see the beet fall on deceased, but saw that deceased "was astraddle of the flume, stooping over." This witness and several others, some of whom were coemployees, testified that up to that time deceased was in good health and was always able to do his work. His widow testified to his uniform good health and said that on the day of the accident when he left home he was in as good health as usual. Some witnesses testified to his being a member of the fire department and performing his duty there the same as other members; that such duty involved the climbing of ladders, sometimes 40 and 50 feet in height, which duty the deceased performed in common with the other members. Deceased was 48 years of age when the alleged accident occurred. It is unnecessary to detail the testimony of each of these witnesses as to the good health and physical condition of the deceased prior to November 23, 1925, when it is alleged the accident happened. After that date he was never able to resume his employment. He did some slight clerical work in connection with an electrical concern in which he was financially interested, but was unable to perform hard manual labor. He died July 14, 1926.

Dr Joseph Hughes, a practicing physician, attended the deceased from the date of the alleged accident to the date of his death. He testified he was a graduate of Jefferson Medical College. He made an examination of deceased within an hour after deceased was taken home. It was about 12 or 1 o'clock. Deceased was unable to talk or give any definite history at that time. He was prostrated and gave evidence of having met with a severe injury. Witness had him put to bed and given rest treatment until he could get a definite history of the case. The next day there was no change; he could not speak, had difficulty in swallowing, and showed stiffening of the face on the right side. Witness called Dr. E. G. Hughes, of Provo, for consultation. They went over the case together. Deceased tried to tell them something, but his tongue was thick and his throat dry. These symptoms of paralysis continued until the latter part of December when they began to abate. Witness notified the insurer that deceased was speedily regaining his normal condition and was ready to resume his job. The company sent him a check covering the time he had been afflicted. Deceased refused to accept the check because he was not well and further treatment was ordered and given. In March he was able to do clerical work, and witness released him for that purpose. On April 3, 1926, he had a paralytic stroke, apoplectic in character, involving hemiplegia of the right side, right arm, leg, right forehead, and face. He showed signs of getting better until May when he had a second stroke, which lasted a few hours, involving the left side. From then on he "wilted like a flower" and wasted away until he died. When witness first examined him November 23, 1925, he showed evidence of an injury at the back of his head--a swelling over the neck and between the shoulders. Witness issued a death certificate attributing the death to bulbar paralysis, giving the accident of November 23, 1925, as a contributing cause. He filed the certificate with the state board of health. Witness was still of opinion that the death of deceased was the result of that accident. There was some abrasion, but not bleeding. The ninth, tenth, eleventh, and twelfth cranial nerves were involved. The swelling extended from the base of the skull down to between the shoulders about six inches. His heart at...