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Utah Const. Co. v. Berg

Supreme Court of Arizona

April 18, 1949

BERG et al

Appeal from Award of Industrial Commission.

Proceeding under the occupational disease disability law by Anton K. Berg, claimant, opposed by the Utah Construction Company, employer. To review an award of the Industrial Commission in favor of claimant, employer brings certiorari.


Guynn & Twitty, of Phoenix, for petitioner.

H. S. McCluskey, of Phoenix (Robert E. Yount, of Phoenix, of counsel), for respondents.

Udall, Justice. Phelps, and De Concini, JJ., concur. Due to illness, the Chief Justice did not participate in determining this appeal. Stanford, Justice (dissenting).


Udall, Justice.

Page 368

[68 Ariz. 288] The Utah Construction Company, as employer (petitioner), by proceedings in certiorari has brought before us for review an award made against it by The Industrial Commission of Arizona in favor of Anton K. Berg (claimant). The award of the Commission granted compensation and medical benefits to Berg for total disability due to silicosis complicated by tuberculosis.

While there are numerous assignments of error and propositions of law advanced by petitioner, we deem it unnecessary to set them out for the reason that they can be resolved into these contentions: (1) There is no substantial, competent evidence that claimant was exposed to harmful quantities of silicon dioxide dust (Si02) in Arizona (a) for a total period of not less than 1200 work shifts during the ten-year period immediately preceding the disablement, and (b) for a period of sixty days while working

Page 369

for petitioner, the employer in whose employment claimant allegedly was last exposed to such dust. (2) There was no proof of causal connection between his disability and any exposure to silicon dioxide dust either while in the employ of petitioner or in his employment in the state of Arizona during the ten-year period preceding his disablement. (3) The Commission had failed to act judicially in conducting these hearings in that they took judicial notice of numerous matters not properly the subject of judicial notice.

Claimant Berg was born in Sweden in the year 1894, and he came to Arizona in 1916. During the period 1917 to 1929 he was engaged in underground work, drilling, blasting and hard rock mining, for the Verde Extension Mining Company at Jerome. Thereafter during the years 1937, 1939 and for a short time in 1945 he worked a total of some 581 shifts as an underground miner for the Arizona Magma Mining Company, the Tennessee-Schuykill Corporation and the Copper Belt Mining Company. From 1929 to 1936 he shifted to surface road construction work in this state and for a time during the years 1943 and 1944 he was employed in similar work both in California and in Central America on the Pan-American Highway. The balance of his work tabulation schedule shows employment by various highway contractors in Arizona as a powderman, jackhammer operator and laborer. Claimant's last employment was with the petitioner on the Davis Dam Project then under construcon the Colorado River some distance below Boulder Dam. While with petitioner Berg [68 Ariz. 289] worked 106 1/2 shifts, covering the period April 16 to August 24, 1946.

On June 16, 1946 claimant first consulted a doctor regarding his physical condition, complaining to Dr. Findlay of Kingman of "sore throat, hoarseness, weight loss for one year and weakness". X-ray films and later sputum tests enabled the doctor to diagnose the ailment as silicosis and tuberculosis. His advice to claimant at first was to continue working but less strenuously. However, the condition became progressively worse, and by August 24, 1946, Berg was totally disabled and his employment was terminated. A medical examining board composed of Drs. Watkins, Baldwin and Kober on December 2, 1946, confirmed the diagnosis of Dr. Findlay, commenting, "From the history of sufficient exposure to dust, the general condition of the patient and the evidence given by sputum and X-ray examination, it is concluded that this patient has silicosis, of about a stage two, and advanced bilateral cavernous tuberculosis. From a medical standpoint, he is totally disabled from tuberculosilicosis."

Berg, on September 23, 1946, filed a claim for compensation with the Commission under the Occupational Disease Disability Law naming L. E. Dixon Construction Company (by whom he had been employed from September to December, 1945) as the responsible employer. Subsequent proceedings were, by action of the Commission, directed against the petitioner (Utah Construction Company) as the employer. Numerous hearings and rehearings were held before the Commission and its referee, both at Kingman and in Phoenix, and on March 12, 1947, claimant was first awarded compensation against the petitioner. However, in May of that year the claim against petitioner was dismissed by the Commission, it expressly finding in reversing the earlier award that the evidence indicated applicant had not been exposed to harmful quantities of silicon dioxide dust during a sixty-day period while employed by petitioner. Then on December 2, 1947, a majority of the Commission again "about-faced" and made a final award against petitioner favorable to claimant Berg. When petitioner let it be known that it would appeal from this ruling, the Commission on the same date made an alternative award upon the same findings in claimant's favor against the L. E. Dixon Company as employer and The Industrial Commission of Arizona as insurance carrier for said company. It was recited in the order that this last named employer is no longer engaged in business in Arizona, its insurance policies have been cancelled, said company will not be affected by any award made, and that the State Occupational Disease Disability Fund, section 56-1217, A.C.A.1939, is liable for such an award.

Page 370

While under our rules of procedure claims for relief or defenses may be pleaded in the alternative, regardless of consistency, section 21-408, A.C.A.1939, Rules Civ.Proc. Rule 8(e), this is the first time we [68 Ariz. 290] have ever heard of a finding of fact in the alternative. Section 56-1214, A.C.A.1939 plainly states that the only employer liable in these cases shall be the employer in whose employment the employee was last exposed to harfmul quantities of silicon dioxide dust during a period of sixty days or more. Obviously, both findings, i. e., that each of the named employers was the one in whose employment the claimant was last exposed to harmful quantities of silicon dioxide dust for a period of sixty days or more cannot be true. Such dual and inconsistent findings merely cast a cloud on the verity of either, for if the L. E. Dixon Company was the last employer with whom the claimant was harmfully exposed, then no award should have been made against the Utah Construction Company, and vice versa. Moreover, we are unable to find any statutory authorization for an award by the Commission being made in the alternative.

This is a companion case to Phelps Dodge Corporation v. Ford, 68 Ariz. 190, 203 P.2d 633. The two cases were argued together and to a certain extent were jointly briefed. They are of first impression, and present some questions not heretofore passed upon by this court in interpreting the Occupational Disease Disability Law as it pertains to silicosis. Laws 1943, chapter 26; article 12, chapter 56, pocket supplement A.C.A.1939. The pertinent sections of the law are set out at length in the opinion in the Ford case and will not be repeated here except where and insofar as necessary.

In its determination of this case the Commission took judicial notice of numerous matters upon which no competent testimony had been introduced, and to a great extent the award is predicated upon these assumed facts thus injected into the record. We point out some of the more glaring instances in which the doctrine of judicial notice was invoked by the Commission. It took judicial notice of: (a) the relative high humidity and high summer temperatures in the canyon section of the Colorado River at Davis Dam; (b) the effects of silica, even in minimum quantities, by reason of humidity and high temperatures; (c) the degree of tolerance of an individual to poison under one circumstance does not hold true in a different environment; (d) the files of the Commission in other silicosis cases; (e) the closing remarks and summary of the Fourth Saranac Laboratory Symposium on Silicosis held in June, 1939; (f) excerpts from the enlightening book Pneumoconiosis (Silicosis), by Drs. Lewis Gregory Cole and William Gregory Cole; (g) statements of the late Dr. Leroy U. Gardner copied from an article in Occupational Medicine volume 4, number 1, July 1947, as reprinted from the Thirtieth Biennial Report of the Department of Labor and Industry of Minnesota, 1945-1946; (h) the knowledge obtained by Commissioner Rooks and Referee Yount on an inspection trip to Davis Dam.

[68 Ariz. 291] Judicial notice of a fact, where it can properly be recognized, takes the place of proof and is of equal force. Before a court or quasi-judicial body, such as the Industrial Commission, can take judicial notice of a fact, the basic requirement must be met, to-wit: A fact to be judicially noticed must be certain and indisputable, requiring no proof, and no evidence may be received to refute it. We reaffirm the principles governing this matter of judicial notice enunciated in the Ford case ,supra.

We think that the following comments upon some of the matters listed above (which are not covered by the Ford opinion) might not be amiss. While it might be quite proper to take judicial notice of the high summer temperatures at Davis Dam, which is in the desert country at an elevation of some 600 feet, it runs contrary to all of our understanding of the dryness of the desert air in the adjacent area of Needles, California, to say that a high humidity prevails in that locale. As to taking judicial notice of the Saranac Symposium referred to under (e), it is enlightening to consider the meaning of this term "symposium". Webster's New International Dictionary, second edition, unabridged,

Page 371

defines it in this regard as "A conference at which a particular topic is discussed and various opinions gathered." The learned doctors who authored the book Pneumoconiosis (listed under (f)) frankly state in the introduction, page 3, that the observations that have been made and the conclusions drawn therefrom "are not in accord with accepted ideas". These examples will suffice to demonstrate that the Commission evidently has an entirely erroneous conception of the doctrine of judicial notice.

There is no limit to which a court or a quasi-judicial body may go in referring to encyclopedias, dictionaries and scientific publications for the purpose of refreshing recollection or for material which will assist in the clarification or interpretation of evidence. Such procedure is, however, something entirely different from taking judicial notice of a fact and thereby eliminating the requirement of proof of such fact through the introduction of evidence. See 20 Am.Jur., Evidence, section 97; 31 C.J.S., Evidence, § 7; 9 University of Kansas City Law Review (1940), page 38.

Certainly the award cannot rest upon the observations as to dust conditions prevailing at Davis Dam gleaned from a visit there by one of the commissioners (one of the two quasi-judicial officers who signed the award) and the commission's referee. From time immemorial the law has been "That a presiding judge cannot give judgment on his personal and private knowledge * * *". First National Bank v. Clifton Armory Co., 14 Ariz. 360, 128 P. 810, 812, Ann.Cas.1915A, 1061. The observations and state of mind of these officials is no substitute for evidence.

[68 Ariz. 292] Equally fallacious is the contention by the Commission that, as they are presumed to be experts in their field, the expert knowledge of the commissioners gained through the handling of similar cases obviates the necessity of evidence as to these matters, and that the claim may be determined, in part at least, by such expert knowledge of the commissioners. In support of this line of reasoning we are cited to the case of McCarthy v. Industrial Commission, 194 Wis. 198, 215 N.W. 824, 826, wherein the court said:

"Why constitute experienced and expert men as fact finders if their findings of fact upon expert matters are to be overturned by courts, the personnel of which have neither the knowledge nor experience of such matters ...

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