Smith v. Industrial Commission , 104 Utah 318 ( 1943 )

I disent. On March 18, 1942, claimant, while in the course of his employment as building manager for the defendant, Continental Building Company, was walking down a flight of steps in the Continental Building. His heel caught on the edge of one of the steps, and he tripped. To avoid striking his head against the wall at the foot of the stairs, he grabbed the hand rail with his left hand and jumped, landing on his feet on the landing below. He immediately experienced a burning sensation in his left groin, and a feeling of nausea. The nausea lasted for two or three hours, and the burning sensation for a day and a half or two days. That evening plaintiff examined himself, but could observe no bulge or apparent injury, and made no report of the accident. On June 6, 1942, he was informed by an examining army doctor that he had a hernia. He doubted the diagnosis, and immediately consulted his personal physician, his brother, who confirmed the diagnosis, and performed a surgical operation to close the rupture.

One of the operating surgeons described the hernia as a combination of direct and indirect hernia, and expressed the opinion that it had originated within six months prior to the operation on June 23, 1942.

Claimant made no report of the accident to his employer until after the doctors discovered the hernia in June. He was familiar with the compensation law, and the rule for reporting accidents, but did not think that he had sustained any compensable injury. After the doctors told him he had a hernia, he thought back, and the accident on the stairway was the only event he could recall which could have produced the hernia. The doctor testified that nausea and a burning sensation in the inguinal region are familiar symptoms in the origin of hernias, and readily suggest the occurrence of a hernia, although they may occur from other causes.

The commission found applicant did not suffer an injury arising out of, or in the course of his employment on March 18, 1942, and denied an award. The question is: Does the evidence require a finding that the hernia was the result of the accident on the stairway, and that a finding to the contrary would be arbitrary and capricious.

We have repeatedly held that where there is a conflict in the evidence, or where there is a question of fact to be resolved upon which reasonable minds may differ, we cannot disturb the findings of the commission. Crane v. Industrial Comm.,97 Utah 244, 92 P.2d 722; Parker v. Industrial Comm., 78 Utah 509,5 P.2d 573; Columbia Steel Co. v. Industrial Comm.,92 Utah 72, 66 P.2d 124. We have likewise held that where there is competent evidence, substantial in character, as to a material fact, which evidence is uncontradicted, the commission cannot disregard such evidence. Batchelor v. Industrial Comm.,86 Utah 261, 42 P.2d 996; Kavalinakis v. Industrial Comm.,67 Utah 174, 246 P. 698; Hauser v. Industrial Comm., 77 Utah 419,296 P. 780; Ostler v. Industrial Comm., 84 Utah 428,36 P.2d 95. But evidence is not necessarily uncontradicted, just because no witness may testify to the contrary. Such evidence

"may be disbelieved where it is contrary to natural or physical laws, opposed to common knowledge, inherently improbable, inconsistent with circumstances in evidence, or somewhat contradictory in itself, especially where the witness is a party or interested, or where in the very nature of things it is impossible to secure opposing testimony." 23 C.J. 47, 48; 32 C.J.S., Evidence, § 1038; Kavalinakis v. Industrial Comm., supra.

In Norris v. Industrial Comm., 90 Utah 256, 61 P.2d 413,415, discussing this question we said:

"Where the matter presented on appeal is the question of whether the commission should have in law arrived at a conclusion of fact different from that at which it did arrive from the evidence, a question of law is presented only when it is claimed that the commission could only arrive at one conclusion from the evidence, and that it found contrary to that inevitable conclusion. But in order to reverse the commission in this regard it must appear at least that (a) the evidence is uncontradicted, and (b) there is nothing in the record which is intrinsically discrediting to the uncontradicted testimony and (c) that the uncontradicted evidence is not wholly that of interested witnesses or, if the uncontradicted evidence is wholly or partly from others than interested witnesses, that the record shows no bias or prejudice on the part of such other witnesses, and (d) the uncontradicted evidence is such as to carry a measure of conviction to the reasonable mind and sustain the burden of proof, and (e) precludes any other explanation or hypothesis as being more or equally as reasonable, and (f) there is nothing in the record which would indicate that the presence of the witnesses gave the commission such an advantage over the court in aid to its conclusions that the conclusions should for that reason not be disturbed.

"If the commission should decide against the uncontradicted evidence under those conditions, its decision would as a matter of law be arbitrary and capricious, which is another way of saying that it would be unreasonable."

Let us measure the facts in the instant case by these tests. (a) No evidence was offered or received except that of plaintiff, of Dr. White, and the laboratory record from the hospital. There is no contradiction or variance as to the facts related anywhere in the record. That plaintiff tripped on the stairs as related by him is not disputed, and the commission found there was no evidence to the contrary. That he had a hernia which had probably developed within six months prior to his operation is admitted, and the expenses of the operation are conceded. (b) There certainly is nothing in the record intrinsically discrediting to the testimony of plaintiff and his physician; the doctor testified that a hernia such as this could readily occur as result of the fall testified to by plaintiff. (c) The uncontradicted evidence is not wholly that of interested witnesses. The hospital record, and Dr. White both corroborated the fact of the hernia, and the fact that it was of recent occurrence (within six months); the doctor also corroborated plaintiff in that nausea and a burning sensation, in the inquinal region such as plaintiff testified to, would follow and result from a hernia such as this; also that such hernia could result from such accident. The record shows no bias or prejudice on the part of any witness. (d) The evidence is such as to carry a measure of conviction to a reasonable mind. It is a simple plain unvarnished story, frankly told, in most matters corroborated; reasonable, very possible, and in harmony with common knowledge and medical facts, judgment and experience. (e) It precludes any other hypothesis or explanation as being equally as reasonable. The record shows a hernia of not over six months' duration; which could readily have resulted from this kind of an accident; that the accident was immediately followed by nausea, and burning sensations in the left inquinal region, medically suggestive of occurrence of hernia; that a hernia like this does not produce a bulge, and does not result in prostration or inability to work; that there was no other accident or occurrence in the life of plaintiff, that could be recalled, which could produce a hernia; that this hernia was in part, at least, a direct one, which would only result from a sudden accident or application of force. Upon what other theory except a bald guess that it might have happened some other time or place can one account for it? How else would one account for the nausea and burning sensation? Upon what point could one postulate that it had occurred within six months other than this event? Where else can one infer a strain, blow or jar of sufficient intensity to produce a direct hernia such as this? We submit there is no other hypothesis adducible from the evidence as reasonable as this. (f) There is nothing in the record to indicate at all that the presence of the witnesses gave the commission any advantage over the court in aid of its conclusions.

It follows therefore, that plaintiff's evidence is competent, substantial, uncontradicted, and meets all the tests laid down by this court speaking through Mr. Justice Wolfe in the Norris case, supra. I am much concerned about some of the statements made to uphold the prevailing opinion, to the effect that the testimony of an interested party is just for that reason alone subject to suspicion and is to be discounted, as a matter of law. In these days, when every effort is being made to expedite legal determinations, and break the outmoded and useless shackles of three hundred years ago, and bring legal procedures and methods up to a practical and functional conception in a modern world, it seems like a reversion or "throw back" to read that "Everyone recognizes that an interested witness is not entitled to as much credibility as one who is not interested," and also that "none contend that such testimony [of an interested witness] should be given the same weight as that of a disinterested witness." I always thought every jury was told by the court that they must apply the sametests to the testimony of a party as to that of any other witnesses. Then the prevailing opinion says:

"In removing the disqualifications of parties and interested witnesses to testify the statutes almost invariably provided that `the jury are the exclusive judges of his credibility,'" and cites Section 104-49-1, U.C.A. 1943.

I think this is not a proper statement, as it gives implication that the section was enacted to remove a prior disability existing in the state against an interested party testifying at all, and subjecting his testimony to a special jury test. That section provides that substantially all persons except those mentally incapacitated are competent witnesses, and the credibility of any and all witnesses is for the jury, to be judged by the tests fixed by the section, which are the same for all witnesses; provided that a party directly interested in the outcome of a civil suit may not testify as to any statements made by or transaction with a deceased person, when the legal representative of the deceased person is the adverse party in the suit. Then the opinion cites the case of State v. Cerar,60 Utah 208, 207 P. 597,

"which indicates that courts consider the testimony ofinterested witnesses less reliable on that account." (Italics added.)

It does not so indicate. It merely indicates that in any given case the trier of the fact may consider it less reliable on that account. The California, and the Montana codes provide:

"a witness is presumed to speak the truth. This presumption, however, may be repelled by the manner in which he testifies * * *." Civ. Code Proc. Cal. § 1847; Rev. Codes Mont. 1935, § 10508.

I cannot subscribe to the doctrine that just because one may be a party or interested in a matter he thereby loses his manhood and character in regard thereto. I think the word of a man of character, even though he be interested, is worth more than the word of a weakling, a "wishy wash" an unstable or unmoral person who happens to be, or appears to be, disinterested. I do not subscribe to the doctrine that all men suck eggs, but some hide the shells. I therefore dissent.