Nuzum Ex Rel. Nuzum v. Roosendahl Construction & Mining Corp. , 565 P.2d 1144 ( 1977 )

ELLETT, Chief Justice

(dissenting).

Alfred J. Nuzum had suffered from a heart condition for a long period of time. The doctor who testified on behalf of the plaintiffs stated that the major vessel to Mr. Nuzum’s heart was 90% occluded and that death could occur even while he was in bed and asleep. He further testified that any sort of exercise, including walking, could cause death and that Mr. Nuzum should not have been working on the job. He testified that smoking and drinking would be a cause. Other testimony showed that Mr. Nuzum smoked heavily and drank to excess.

The truck which Mr. Nuzum operated had been in a condition requiring manual dumping, and Mr. Nuzum operated the truck in that manner during a period exceeding thirty days. Getting in and out of that truck to dump the load was no accident. It was the only way to operate the machinery, and it was the usual way to do so. The only unusual thing that occurred was the death of Mr. Nuzum, and that was not unexpected since it could have happened while he was in bed asleep.

There was no accident in any sense of the word. There was nothing unusual about the work; it was the very work for which he was hired. He simply took on a job which required him to dismount from the driver’s seat six or seven times a day.

Whether the death resulted from an accident or was simply the result of a diseased heart is a fact to be found by the defendant commission in this case. On ample evidence furnished by the plaintiff, the defendant found that death did not result from an accident. Section 35-1-85, U.C.A.1953, as amended, provides that “The findings and conclusions of the commission on questions of fact shall be conclusive and final and shall not be subject to review; . . .”.

The only exception is that when the evidence is not sufficient to justify the finding made, this Court on review may say as a matter of law that the finding cannot stand. In this case, the evidence seems conclusive that there was no accident.

The ruling made by the defendant commission should be affirmed.

HENRIOD, Justice

(dissenting).

I dissent out of deference to the oft-repeated principle that if there is substantial, competent, admissible evidence to support the order of a statutory arbiter of the facts, it should survive appellate review, which in my opinion, appears to be the case here.

WILKINS, J., does not participate herein.