In reviewing the evidence as bearing on the cause of the death of the deceased, I think the intensity of the heat and the conditions in such respect under which the deceased worked at the time of his collapse have not been sufficiently noticed.
All of the witnesses testified that the day on which the deceased collapsed and the previous day were very hot, and that the asphaltum handled by him was heated to a temperature of from 250 to 300 degrees Fahrenheit. One of the witnesses working with the deceased at the time of the collapse testified:
"It was a bright, sunny day, hot; it was one of the hottest days we had last summer; I noticed it was extremely hot; it was right hot on the street there. Q. Just go ahead in your own words and tell to the Commissioner what happened in this particular case that you noticed? A. Well, I noticed Grasteit; he had started to working and *Page 497 started working a little bit fast that day and he got on my side where he was working kind of close to me and I told him not to try to do too much and keep on his own side of the street — you know it was awful hot — and to take it a little easy. He raked that morning until about ten or eleven o'clock — about eleven o'clock I would say, when I noticed — we had a load about half raked out; we were both in the street working close together. He started to push a little bit with his rake to level it off and would only make a few moves with his rake and then he would stop and put his hand up to his forehead and hold to the rake with other hand. He would stand that way a few seconds and then work again. I noticed he done that two or three times then I looked at him and said, `Herman, you go over and sit down for a few minutes, I can finish this load.' The load was about half finished and I said I could finish it. He took his rake and put it in the fire where we keep them warm and staggered over and sat down on the curb, and in a few moments he keeled over on his side and then on his back and became unconscious."
Another witness testified that the deceased at the time of the collapse was and prior thereto had been "working vigorously." The work was performed by him on a street pavement under the direct rays of the sun. When the weather report of the weather bureau, referred to in the prevailing opinion as showing the temperature on the day in question at about the time of the collapse to be 82 degrees, was put in evidence by the insurance carrier, its counsel stated he did not know where or the conditions under which the temperature was taken. We may well assume it was taken in the shade either on the ground or on top of a building or other structure and as such temperatures usually are taken, and that it was not taken under conditions similar to those under which the deceased worked at the time of his collapse. Every one knows that heat on a street pavement under the direct rays of the sun is far more intense than in the shade or on top of a building or other structure; and, adding to the intensity of the heat, was the further fact that the deceased was working immediately over and handling the heated asphalt material.
The expert witnesses, the physicians, some of them called on behalf of the applicant and some on behalf of the insurance *Page 498 carrier, disagreed as to the immediate cause of the death. Two, called by the applicant, expressed opinions that the cause was "heat exhaustion," or "heat stroke," two called by the insurance carrier that it was cerebral hemorrhage; and one called by the applicant that he could not say whether it was the one or the other cause. However, all of them testified that without an autopsy, which was not had, it could not definitely be determined whether the death was from the one cause or the other. If the direct or immediate cause of death was cerebral hemorrhage, and if it be held that loss by death from such a cause is not compensable, but is if the death was caused by heat stroke or heat exhaustion, or if it be held that a death from either cause is not an accident within the meaning of our workmen's compensation act, then the denial of an award made by the commission should be affirmed.
In the application for compensation it, among other things, was alleged that, "while so engaged in said employment, said deceased suffered an industrial injury and accident from which he immediately died." It was not alleged whether the death resulted from brain hemorrhage or heat stroke or what was the immediate cause of death. At the hearing the applicant gave evidence to show the prior good health of the deceased, the excessive heat and the kind of work at which the deceased was engaged at the time of his collapse and called two physicians who testified that in their opinion the immediate cause of death was heat stroke or heat exhaustion, and one who testified he could not say whether it was heat stroke or brain hemorrhage. The insurance carrier called two physicians who expressed opinions that the cause of death was brain hemorrhage.
The commission did not find that the cause of death was cerebral hemorrhage, but found it was the result of a "suspected cerebral hemorrhage." The findings of the commission are:
1. "That Herman Grasteit, on July 17, 1928, was employed by Gibbons Reed Company as an asphalt raker; that on said date the said *Page 499 Herman Grasteit died, his death being the result of a suspected cerebral hemorrhage."
2. "The evidence does not disclose that Herman Grasteit died as the result of an accident while employed by Gibbons Reed Company."
3. "The commission further finds that applicant has not sustained her burden of proving that the death of her husband was the result of an accident at the time and in the manner alleged."
From that it would appear the commission was doubtful as to the immediate cause of death, but rather ruled the case on the determinative factor that death was not the result of an accident, that it did not arise through or out of accidental means, and hence the loss was not compensable. If the commission took the view that cerebral hemorrhage in the course of employment might not, like sunstroke, or heat stroke, or heat exhaustion, be regarded as an accident, or as arising out of accidental means and for that reason a loss occasioned by death from cerebral hemorrhage was not compensable, then the commission misconceived and mistook the law. The pertinent question here is not so much whether the immediate or direct cause of death was cerebral hemorrhage, or heat or sun stroke; but more particularly whether the cerebral hemorrhage or heat stroke whichever was the immediate cause of death, was induced or contributed to by the excessive heat and the kind of work being performed by the deceased under the conditions and circumstances surrounding him at the time of his collapse. In other words, if the collapse was induced or contributed to by the excessive heat and the work being performed by the deceased in the course of his employment, then, it seems to me, it is immaterial whether the immediate cause of death was cerebral hemorrhage, or sun stroke, or heat stroke, for in such case, either, under our Workmen's Compensation Act, would be regarded as an accident or as accidental means arising out of or in the course of the employment and the loss of death compensable. Though it be assumed that it was within the province of the commission to accept the testimony and the expert opinions of the physicians *Page 500 that the immediate cause of death was cerebral hemorrhage, instead of the testimony and opinions expressed by the physicians that the death resulted from heat stroke or heat exhaustion, and to make a finding, which the commission did not do, that the cause of death was cerebral hemorrhage, or though it be assumed that the commission had found that the death resulted from cerebral hemorrhage, yet, on the record, how stands the case?
Witnesses, wholly disinterested and who had worked with the deceased and who had intimately been associated with him for many years and up to the time of his death, testified, in substance, that the deceased was a strong, healthy, able-bodied man, a good strong workman, free from ailments of any kind, and that about a year prior to his death passed a successful examination for life insurance. Such testimony was not disputed. There was no evidence to show that the decased suffered from or was afflicted with a weak heart, or from diseased arteries, or high blood pressure, or had any ailment to which cerebral hemorrhage could or might be attributable, or that he suffered from any ailment.
There is testimony to show from some of the physicians that excessive heat and exerted energy thereunder are contributing and inducing causes of cerebral hemorrhage, and that cerebral hemorrhage under such circumstances may well be caused, where without them it would not be. Such physicians expressed opinions that the excessive heat and the energy exerted by the deceased were contributing causes to his collapse whether the immediate cause of death was cerebral hemorrhage or heat stroke. Other physicians, testifying that the cause of death was cerebral hemorrhage testified that one may have cerebral hemorrhage or apoplexy in cold weather and without exertion, even while sitting in a chair or in bed by merely turning over. However, all of the physicians testified that excessive heat and exertion are contributing causes to cerebral hemorrhage, depending upon the extent of the heat and the amount of energy exerted. Of course, as explained by the physicians, brain *Page 501 hemorrhage may be due to many causes, to high blood pressure, inelasticity or a diseased condition of the arteries, a weak heart, or to a clogging or diseased condition of brain vessels, or to other causes; but cerebral hemorrhage ordinarily does not result in one of the age of the deceased, in healthy condition and free from ailments and not suffering from a predisposed condition likely to cause cerebral hemorrhage. There was not anything to show that the deceased suffered from any predisposed condition likely to cause cerebral hemorrhage. The evidence without dispute shows he was healthy, strong, and able-bodied. His collapse did not result under normal or ordinary conditions, or while he was not exerting himself, or merely walking down the street, or sitting in a chair, or turning over in bed, or drinking buttermilk. When it is shown he was in good health and not anything to show he suffered from any ailment or predisposed condition to which cerebral hemorrhage may be attributable, then why conjecture and speculate that he might have had cerebral hemorrhage sitting in a chair or turning over in bed. Further, it is well recognized that, as to many subjects or questions, expressed opinions of experts as a general rule are regarded with inherent infirmity because consisting largely of mere opinions and are considered as but aids or advisory and in many jurisdictions as of a low order of evidence and of an unsatisfactory character. Such considerations go not only to the mere weight of testimony but more to the legal probative effect to be given it, matters concerning which it has been held are proper admonishments and caution by courts to juries. Besides it is common observation that many experts are prone to evolve theories and cloud matters in bewildering technical nomenclature, concerning which they are called to express opinions, and are free to give one in support of the claim or contention of the litigant calling them. Here medical experts freely suggested instances under which cerebral hemorrhage has and may occur, the subject while sitting in a chair or turning over in bed, without exertions of any kind, and without any showing *Page 502 that the collapse of the deceased occurred under such conditions or circumstances and without any showing of, or taking into consideration, any predisposed condition of the subject likely to result in cerebral hemorrhage, which led the commission to find that the deceased died from "a suspected cerebral hemorrhage" which was neither accidental nor arising out of nor in the course of employment, and in all probability would have resulted had the deceased on the day of his collapse remained at home sitting in a chair.
Thus when we look to the cause of the hemorrhage, if such was the immediate cause of the collapse, and more especially to contributing causes but for which the hemorrhage would not have occurred, the record not only naturally and reasonably points to the excessive heat and to the conditions under which the work was performed by the deceased at the time and does not point to any other reasonable or probable cause, except upon mere conjecture and speculation that the hemorrhage might have been caused wholly uninfluenced by the intense heat and exertions of the deceased. It having been shown that the deceased was in good health, there is not anything in the record to support any such conjecture or speculation or any cause of the collapse, except the excessive heat and conditions under which the work was performed. To me it is clear that the commission either regarded a death caused by cerebral hemorrhage in the course of employment not an accident, or disregarded the evidence that the excessive heat and the kind of work being performed by the deceased naturally and reasonably pointed to contributory causes of the collapse and based its ruling on mere conjecture and without any evidence to support it, that "the suspected hemorrhage" resulted or might have resulted from a cause wholly uninfluenced by the excessive heat and the kind of work performed by the deceased at the time of his collapse. A finding on the one is against law, and on the other is against the evidence.
Though the deceased, unbeknown to him, or to his associates, had been afflicted with weakness of the heart, or *Page 503 diseased arteries, or with some other ailment, rendering him susceptible to brain hemorrhage, yet, if the excessive heat and the work performed by him under the attending conditions and circumstances as disclosed by the record were contributing causes of the hemorrhage and but for which the hemorrhage would not have resulted, death, in such case, under our Workmen's Compensation Act would be regarded as an accident and the loss compensable. We in principle have held that several times. McEwan v.Industrial Comm., 61 Utah 585, 217 P. 690; Standard Coal Co. v. Industrial Comm., 69 Utah 83, 252 P. 292. To that effect is also the recent case of Monk v. Charcoal Iron Co., 246 Mich. 193,224 N.W. 354.
I therefore am of the opinion that the order made by the commission denying compensation should be vacated and the cause remanded for further proceedings.