It is claimed by the Chief Consolidated Mining Company, and by its insurance carrier, the Standard Accident Company, that the evidence is insufficient to sustain the award in the particular that there was no substantial competent evidence to show that the deceased sustained an injury or met with an accident in the course of his employment, or that his death was due to an accident or injury arising out of or in the course of his employment.
In the application for an adjustment of the claim filed with the commission, it is alleged that the deceased died "as the result of an accident arising out of or in the course of his employment while regularly employed by the Chief Consolidated Mining Company," and that the nature of the work at which he was engaged at the time of the accident was "that, while engaged in underground mining, he was struck on the back by a falling rock," and that his death "was the result of cellulitis [inflammation of the cellular or areolar tissue] and adenitis [glandular inflammation], resulting directly from the accidental injury referred to in the application." It was not alleged that the injury was caused in any other manner. The commission found "that Jack McKellar, on or about the 29th or 30th day of June, 1925, was either struck by a falling rock on the back or he struck his back against the cage. The commission feels certain that on or about such date Jack McKellar, while regularly employed by the Chief Consolidated Mining Company, injured his back, and as a result of said injuries he died on July 13, 1925," It is claimed: (1) That the findings in the alternative — that the deceased was either struck in the back by falling rock or struck his back against the cage — constitute such an uncertainty as to amount to no finding; and (2) that there is no sufficient competent evidence to support a finding of either cause of injury.
The findings in the alternative clearly neutralize each other. On the record both means of injury did not exist. If the deceased was injured by falling rock, he was not injured *Page 344 by striking his back against the cage. If injured by the latter means, he was not injured by the former. The commission, on the record, was unable to find the one means or the other, two inconsistent means, the one destroying the other. The case is no better than if the issue in such respect had been left unfound. Confessedly such findings cannot support an award.
The further question is, Is there sufficient competent evidence to support the award as to either cause of accident or injury?
Admittedly, the deceased died from blood poisoning involving an infection about the middle of the lower part of the back. The certificate of death put in evidence by the applicants shows that the cause of death was "erysipelas, back and abdomen." A contributory cause, "abrasion on back," and "mine accident," is also stated in the certificate.
The testimony of most importance that the deceased was struck by falling rock is this: A witness testified that in the latter part of June, 1925, he was unable to give the exact date, while he was working with the deceased mucking and drilling at and about a sump at the bottom of a shaft in the mine of the Chief Consolidated Mining Company, in whose employ the deceased was, the deceased, on the forenoon of a day, grabbed the witness by the arm, and told him to step back; that rocks were coming down; that he (the deceased) was hit in the back with a rock; that the witness did not see deceased hit, nor, because of darkness, did he see any rock falling, but heard them splash in the water; that he did not know where the rocks came from, but thought they came from an ascending cage overloaded with muck; and that, when the falling of rock ceased, he and the deceased went back to work mucking and drilling. The witness further testified that in the afternoon of that day, or the next day, or the day after that, the deceased complained of being sick, said he had cramps, and asked the witness to ring for the cage to take him to the surface or to the main station, which was done; that the deceased afterwards came back to *Page 345 work, the witness thought the last time after July 4th. Except the time when the witness heard rock falling and splashing in the water, the deceased had not stated to him that he was hit with a rock. The witness further testified that some time afterwards he told the company's temporary shift boss that the deceased had stated to the witness that the deceased was struck with a rock, but, after the death of the deceased, and an application for compensation had been made, and when the bookkeeper of the company was investigating the facts, the witness did not then state that the deceased had stated or claimed to him that he at any time had been hit with a rock; that he was asked whether the deceased had cut or scraped his back in any way, to which the witness in effect replied not to his knowledge, and at such time the witness did not state that the deceased had stated to him that he at any time had been struck with a rock, and testified that the reason he did not then make any such statement was because the matter had "slipped his mind."
Another witness employed at the mine testified that on the 28th, 29th, or 30th of June, 1925, men, including the deceased, working down the shaft, at about 3 o'clock in the afternoon came up to the main station for powder, and that, when the deceased got off the cage, he fell unconscious for a few minutes, and, when revived, complained of having been hit with a rock, and of his back hurting him. The hoist engineer of the company testified substantially to the same thing. The witness further testified that no examination was made of the deceased's back; that they did not know whether there was any bruise, cut, or abrasion on the back, and did not know whether there was any cut or tear in the rubber coat worn by the deceased. But other evidence was given to show that there was no cut or tear in the coat or other wearing apparel worn by the deceased at the time.
The widow of the deceased testified that on July 3d the deceased was about to go to Leamington, a short distance *Page 346 from Eureka, to look after some mining claims in which he was interested. He then told her to paint his back with iodine, saying that he was stiff and sore. She did so, and further testified that there was an abrasion on the left side of the back; that the part was swollen and inflamed, looked like it had pus in it; and that the deceased told her he "got hurt slightly up at the mine," but said nothing more as to any accident or injury. She further testified that the sore looked like a scratch, and that the part involved was about as large as a dollar; that the deceased had not complained of anything until July 3d, and had not told her of any injury received by him other than that he got hurt slightly at the mine.
As the deceased was on this trip he called a doctor, who was the first doctor to see the deceased's condition. The doctor testified that he was called in on account of a sore on the deceased's back; that he found an abraded and open area, a sore about the center of the back, with an area of inflammation or redness extending around the sore; that he could not tell what caused it; and that the deceased stated to him he did not know exactly what the cause was; that, when asked if he had rubbed his back on the side of the car, the deceased replied that he did not think so, but was not sure; and that the deceased did not say anything to him about being hit with a rock. The doctor further testified that a blow on the back could produce a bruise without breaking the skin, and that a bruise could be an entering point for infection.
Another physician saw the deceased at Springville on July 5th. That physician testified that the deceased was quite ill, had a temperature of 103 and a pulse of 110, and had an abrasion, a scartch, on the back, and was suffering from blood poisoning; that the deceased told him that he was working at one of the mines, and said "something about going up in a bucket or something of the kind, and that his back was scraped or something of the kind," but said nothing about having been hit with a rock or a rock falling on *Page 347 him. This witness further testified that, if a rock was of sufficient size and of the right shape, an infection could have started from an abrasion caused by falling rock striking the deceased on the back without cutting the coat worn by the deceased at the time, but as to whether the scratch or abrasion or infection was due to such cause the witness stated he could not express an opinion.
The deceased from there was immediately taken to a hospital. There he was in charge of the physician who signed the death certificate. To that physician the deceased stated that he was hurt three or four days before while he was crawling under a cage in the mine; that the corner of the cage was hanging down, and caught him on the back as he was crawling out from under it, but did not say anything about having been hit or struck with a rock. The witness further testified that the statement made by him in the certificate as to "mine accident" was solely on what the deceased had told him. The physicians further testified that the infection could have been caused by scratching the back with finger nails, and from many other causes.
The foregoing, in substance, is all the evidence bearing on the question in hand. Upon it the contention is made that there is no evidence, except hearsay, to support the award, either on the theory that the deceased sustained an injury by having been hit with a rock or by rubbing and striking his back against the cage. As is seen, the only evidence to show that the deceased rubbed or struck his back against the cage consists of statements made by him to the physisians. Such statements, in so far as they were disserving, were competent, but, in so far as they were self-serving, were hearsay and incompetent. There no doubt are occasions when a physician may testify as to statements, though apparently self-serving, made to him by his patient, when they are fairly necessary to enable the physician to diagnose or treat the ailment or condition of the patient, and to enable him to prescribe and act for the patient, or to aid the *Page 348 physician in forming an opinion as to the character or extent of injury. The particulars or circumstances under which such evidence is admissible I need not now define or indicate, as they have here no relevancy. But statements or declarations of a patient as to the place, manner, or circumstances of an accident, or injury, or how received or occasioned, in so far as they may be self-serving, are hearsay and incompetent, but admissible, if adverse or disserving, unless coming under the statute as privileged communicatons, which here is not, nor can it be, claimed, since the physicians were called by the applicants themselves. In other words, when self-serving statements or declarations of a patient to his physician are received in evidence on the theory of enabling the physician to diagnose the case, or prescribe or act for the patient, or to form an opinion as to the character or extent of injury, they are received only for such purpose, and not as evidence of the place, manner, circumstance, or fact of an accident or injury, or how received or occasioned. Thus the statements of the deceased to the physicians that he received an injury to his back by rubbing it against or striking the cage in the mine, or coming in contact with it while crawling from under it, were self-serving as to such cause or fact of injury and hearsay, and thus may not properly be considered in favor of the applicants as evidence of the facts so declared; but, in so far as they were disserving and adverse, and as tending to dispute a contrary claim of accident or cause of injury, were admissible, and not open to objections to the hearsay rule. I thus am of the opinion that there is no competent evidence — nothing but hearsay — to show that the deceased sustained any injury in the mine by rubbing or striking his back against the cage, or that any such accident occurred.
It also is clear that the statement made by the deceased to his wife that he got hurt slightly at the mine was hearsay, and hence cannot be taken into consideration. That also is true as to the statement in the death certificate, "mine accident." *Page 349
The statements made by the deceased to employees of the mine — except to his co-worker at the bottom of the shaft — that he was hit with a rock, were, as shown by the record, merely narrative statements of a past transaction, and not so closely connected with it as to be a part of it, and thus inadmissible under the res gestae rule, and therefore not an exception to, but within, the hearsay rule. The statement or declaration made by the deceased to his co-worker at the bottom of the shaft at the time rocks were falling and splashing in the water that the deceased then was hit in the back with a rock was competent and admissible under the res gestae rule, and thus was not open to an objection that it was hearsay. But that is the only competent and admissible evidence there is tending to show that the deceased was hit with a rock in the mine.
The question thus is, Is that evidence, though competent, for it cannot be aided by mere hearsay and incompetent evidence, sufficient to show that such an accident occurred and to support the award? Though standing by itself, and were it not self-contradictory, the question should be answered in the affirmative, which is doubtful; yet, as against it, are the disserving statements of the deceased — statements by the same declarant — made to each of the physicians of his own selection that the injury to his back was occasioned, not by a rock striking him, but by rubbing or striking his back against the cage, and, as related by him, in no way associated with any circumstances or occasion of falling rock. That is, the declaration so made by the deceased to his co-worker is inconsistent with, and neutralized by, those made by the deceased to his physicians, unless reconciled by further or other competent evidence, of which there is none.
We thus have a case where it is sought to establish the fact of an accident and injury to the deceased in the mine — an injury arising out of or in the course of his employment — solely by his own self-contradictory and unreconciled declarations each neutralizing the other, leaving the question, *Page 350 as the findings are, in uncertainty and to conjecture. The commission being unable to find what accident occurred, or how it arose, or the nature or character of it, its finding, that it felt "certain" that the deceased, "while regularly employed by the Chief Consolidated Mining Company, injured his back," is but a conclusion, and, in the language of the Apostle, a mere statement of "things hoped for but not seen," and not found.
I think this case on the evidence is no better than the case of Cudahy Packing Co. v. Brown, 61 Utah 29, 210 P. 608, where this court said that "until some proof is adduced showing that an accident happened at the plant of the plaintiff or facts proven from which it can reasonably be inferred that such accident did happen at plaintiff's plant, we do not see how there is any substantial or any evidence save hearsay testimony from which the inference can be deduced that death resulted from an accident which happened in the course of deceased's employment," and "in this case we do not find any substantial testimony in the record, excluding the hearsay testimony, upon which the commission could base an award in favor of the dependents." So here, eliminating the hearsay testimony, as must be done, I think the evidence is insufficient to support the award.
It is contended that the views herein expressed respecting the conflicting declarations of the deceased deal with questions of credibility of witnesses and the weight to be given their testimony — matters wholly within the province of the commission. It is conceded that it is not within our province to pass upon the credibility of witnesses or the weight to be given their testimony. Were that the essence of the views expressed they confessedly would be untenable. But that is not the purport of them. The point is more analogous to a situation where, had the deceased been alive and giving his testimony, and had testified on direct examination that he was hit on the back by a falling rock, and on his cross-examination, or redirect, or further examination, *Page 351 had testified that he was not hit by a rock, but struck his back against the cage as he was crawling from under it, the one statement of the same witness neutralizing or negativing the other, thus leaving the testimony of no legal probative value or at least in such uncertainty as to render the testimony valueless. True, there is this distinction: The conflicting declarations of the deceased come from the testimony on the one hand of the deceased's co-worker and on the other from several physicians. But there is not anything made to appear to render the testimony of such witnesses doubtful or improbable, or to justify a rejection of it, unless it be that of the co-worker. Whatever license the commission may have to test the credibility of witnesses or to weigh testimony does not give it the right to arbitrarily reject testimony. However, from the findings as made by the commission it clearly appears that it did not disbelieve or reject the testimony of the physicians, for the commission found that the injury resulted either from the deceased being struck by a falling rock, as the co-worker of the deceased testified the deceased declared, or by his striking or rubbing his back against the cage, as the physicians testified the deceased declared or stated to them. Thus the commission gave as much weight to the one as to the other. And therein lies the uncertainty, not only of the findings, but of the testimony as well. I do not see wherein such view is open to the objection that it is passing on the credibility of witnesses or the weight of their testimony.
Nor may the matter be aided by pointing to the statute that findings and conclusions of the commission on questions of fact are conclusive and final, and not subject to review. In considering the statute, this court time and time again has said that, notwithstanding the statute, on a review of an order of the commission granting or denying an award, it is within the province of this court to consider and determine whether on the record there is or is not sufficient competent evidence to support an order, and accordingly to affirm or annul it, and that such is a proper interpretation *Page 352 of the statute has not heretofore been, nor, as I understand, is it now, questioned.
Further, though the commission had found that the deceased was injured by a falling rock striking him, which it did not — because of the uncertainty of the findings — and though it also be assumed that the declaration of the deceased to his co-worker at the time of the falling of the rock was competent and admissible under the res gestae rule, still the further question is, Was such declaration alone sufficient evidence to support a finding that the injury was occasioned in such manner and in such respect sufficient to support an award based thereon? I think that doubtful.
That, in my opinion, is all the competent evidence in the record to support the award. When we have such a finding based on such testimony alone, and an award made thereon, it will be time enough to express an opinion respecting it.
The declaration of the deceased, when hoisted from the mine, that he was hit with a rock, also is referred to. Such declaration was not res gestae, and hence was not admissible on such ground. The falling of rock testified to by the co-worker was not at that time. It was in the forenoon of a day. When the falling of rock ceased, the deceased and his co-worker went back to work at the bottom of the shaft. It was the afternoon of that day, or the next day, or the day following that, as testified to by the deceased's co-worker, that the deceased, at his place of work, complained of "cramps," and at his request was hoisted to the surface. Statements then made by him to those at the surface were in no sense res gestae, and could not properly be considered as such.
Further, that the infection resulted from a rock striking the deceased is but conjecture. The physicians but testified that a rock of the right shape striking the deceased's back might or could produce a bruise, or an abrasion, which could harbor infections and poisoning germs producing inflammation and blood poisoning; but further testified that the infection also could be due to many other causes. Whether *Page 353 the infection was due to the deceased's having been struck by a rock, or to one of many other causes, the physicians could not, and did not, express an opinion. Testimony or expressed opinions that one hit by a falling rock might or could produce a bruise or an abrasion from which blood poisoning could result is not corroborating testimony that the person was hit with a rock. As well say that one falling out of a window might or could break his leg is corroborating proof that he fell out of a window. It is not even made to appear that the deceased's having been hit with a rock was the probable or most likely cause, especially when considered in connection with the disserving statements of the deceased that such was not the cause.
I am in perfect accord with rulings that an order of the commission should not be annulled for mere error in admitting hearsay or other incompetent evidence when there is sufficient competent evidence to support the order. That the commission is not the exclusive or final judge as to the competency of evidence adduced before it is clear. We, in effect, have held that, by holding as we have that in considering the question of sufficiency of evidence to support an award all hearsay and incompetent evidence is excluded from consideration, and that an award will be set aside if supported only by hearsay or other incompetent evidence, or if not supported by sufficient competent evidence. When we hold, as we have, that awards or orders when supported by sufficient competent evidence will not be disturbed, though hearsay or other incompetent evidence was received, such holding is largely on the indulgence of a presumption that the commission, in making findings and orders based thereon, did so, or were required to do so, upon a consideration of only the competent and to the exclusion of the incompetent evidence. However, if, on a record, it is mainfest and unmistakable, or indubitable, that the findings were in fact induced or influenced by a consideration of hearsay or other incompetent evidence, and but for which other and different findings would have been made or conclusions *Page 354 reached, or which on the record were demanded, then logically does it follow that such an award or order is so tainted as to require its annulment. Certain it is that to justify such a conclusion by us on a review of a record requires a clear case. Such, in my opinion, is the character of case now before us, one where about all the evidence received was hearsay, and one where the findings were not only influenced, but dominated and controlled, by it. Making or refusing an award on findings so manfiestly and unmistakably tainted and induced is as much an abuse of discretion and power and a capricious and arbitrary and not a judicial exercise of it as is the making of findings and orders based only on hearsay or other incompetent evidence.
I, therefore, am of the opinion that the order of the commission granting the award should be annulled, and the cause remanded for further proceedings, and in such particular concur in the result reached by the prevailing opinion.