222 P. 592 | Utah | 1923
This is a proceeding to review an award made by the defendant Commission to Alice Baker Bradley, as guardian for her infant son John Calvin Bradley.
Delos Bradley, the father of the boy, sustained an accidental injury arising in the course of his employment by plaintiffs, McGarry et al., in October, 1922, at Park City, Utah. The injury resulted in his death during the same month. The case is within the Utah Industrial Act (Comp. Laws, 1917' §§ 3061-3165).
As sufficient facts are not found to show an actual dependency we are forced to the conclusion that the Commission must have assumed that the question of dependency was controlled by the provisions of the statute, in which total dependency is presumed, rather than from the provisions in which dependency in whole or in part is to be determined “in accordance with the facts.”
Comp. Laws Utah 1917, § 3140, subd. 5, as amended in Session Laws 1919, at p. 163, reads as follows:
“The following persons shall he presumed to he wholly dependent for Support upon a deceased employee:
“(a) A wife upon a husband with whom she lives at the time of his death.
“(h) A female child or female children under the age of eighteen and a male child or male children under the age of sixteen*84 years (or over such ages if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent.
"In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employee, but no person shall be considered as dependent unless a member of the family of the deceased employee, or bears to him the relation of husband or widow, lineal descendant, ancestor, or brother or sister. The word ‘child’ as used in this title, shall include a posthumous child, and a child legally adopted prior to the injury.”
If tbe Commission assumed that the case falls within the provisions of the first paragraph of subdivision (b), which seems probable, the assumption is without foundation for the reason that the uncontradicted evidence shows that the boy was not living with deceased at the time of his death, and had not been living with him for a period of six years or more previous to that time. If the Commission assumed that the case falls within the provision of the second paragraph of subdivision (b), then no facts are shown other than the relationship of parent and child from which dependency can be inferred.
We feel justified in assuming that the Commission arrived at the conclusion that this case is one in which dependency is presumed from relationship 'and consequently classed it under the first paragraph of subdivision (b). No interpretation of the statute consistent with any known rule of construction can make this case one in which dependency may be presumed under subdivision (b). Living with his father at the time of his death, either actually or constructively, is just as essential to the establishment of dependency as is the relationship of parent and child.
The Attorney General, appearing for the Commission in an illuminating and instructive brief contends for a different interpretation of the statute. If we read his contention aright, there is a presumption that a father and a minor child in a case of this kind are living together, whether in fact they are or not, and that in Utah, where there is a legal liability on the part of the. father to support his minor
We may be assuming too much in concluding that the Commission found dependency under the first paragraph of subdivision (b). We assumed that fact because the findings show no facts whatever except relationship, of actual dependency as contemplated in the next succeeding paragraph. We have referred to no authority in support of the proposition that there is no presumption of dependency in this case under the provision of the Industrial Act. The statute is too clear and unequivocal to call for reference to adjudicated cases.
We agree with the plaintiffs’ contention that we have no power to make findings in a case of this kind or do other than either affirm or annul the award made by the Commission. Nevertheless we would not be discharging our full duty under the law if we failed to indicate our views as a guide to the Commission in future cases, or even in the instant ease, if there are facts warranting further investigation. This is a case which, for aught we know, may be one of extraordinary hardship when all the facts are known. We know already from the facts before us that a mere infant only seven months of age, together with its mother, was abandoned by the husband and father, who assumed another name to hide his identity, and continued successfully so to do for a period of nearly seven years, when he came to his death as the result of an accident, at which time his identity was discovered by the applicant. It appears that almost immediately thereafter she had herself appointed guardian for her son, and commenced this proceeding for compensation under the Utah Industrial Act. The writer regards it as a significant fact that on the very first opportunity after learning the whereabouts of her former husband she instituted this proceeding to obtain the common necessaries of life for her infant son. It is reasonably clear that if she had known of his whereabouts at the time she insti
The brief filed by the Attorney General cites an English case strikingly similar to the case, at bar in many essential respects: Young v. Niddrie & Benhar Coal Co., Ltd., 6 B. W. C. C. 774. The headnote states the points involved and the decision thereof:
“A workman deserted his wife and pupil children in 1907. During the next two years he gave occasional small sums to or for the pupil children. He then in 1909 wtent away, and a decree of ailment was obtained against him, and one small sum- arrested out of wages thereon. He then disappeared and successfully evaded search until he died by accident in April, 1911. A sum due to him for wages at the time of the accident was paid to the widow after his death. Held, the children were dependents. The fact that the father had so far successfully avoided his legal liability of maintaining his children did not destroy dependency.”
We admit that iu most eases of actual dependency the fact that deceased in his life-time and down to a comparatively recent date furnished or promised some support to the applicant is important and oftentimes a controlling factor, but there is nothing in the Utah statute making it essential, and the opinion in the English case above cited ignores that feature altogether as a basis for the decision. The decision appears to rest upon the following propositions: (1) The legal liability of the father to support his children; (2) actual dependency of the children; (3) the fact that the mother had availed herself of such opportunities as the law afforded her to compel her husband to support his children.
There is no question in this case as to the legal liability of the father to support his minor child. It is even made a felony in Utah, punishable by fine or imprisonment, or both, for one to willfully neglect to provide support and maintenance for his minor child. Comp. Laws Utah 1917,
In Merrill v. Penasco Lumber Co., 27 N. M. 632, 204 Pac. 72, the court says:
“But just as the existence of the marital status does not of itself prove dependency, so the lack of actual support hy the husband does not of itself negative dependency. The failure to support is only one circumstance for consideration. The reasons for it, the length of its continuance, the mutual attitude and means of the parties, the probable resumption of duty, and other‘similar matters may have a distinct bearing on the subject. If dependency were determined only by the fact of contribution to support, a wife and children might be dependent one week and cease to be the next according to the caprice of the husband and father. Such a theory lacks support from authority.”
“The law does not limit dependency of minor children living 'apart from their parents to cases where actual support was being furnished or contribution made, as such a rule would in many instances exclude children from ¡the benefits of a law that was clearly intended for their protection.”
Another English case elucidating the question under review is reported in volume 1, B. W. C. C., at p. 332. The headnote reflects the gist of the opinion, but the entire opinion, which is brief, is worthy the attention of the reader. The headnote reads:
“A wife who had been turned out of her home. by her husband and had not been living with or supported by him for eleven years before his death, but who had made endeavors to obtain support, was held to be in part dependent upon her husband’s earnings at the time of his death within the meaning of schedule 1. (1) (A) (ii) of the Act of 1906.”
We have found no American cases as nearly analogous to the instant case as are the English eases above cited. Neither have we found any American case which contravenes the doctrine of the English cases. We are compelled to treat each case according to its facts. As stated in plaintiffs’ brief:
“This court has repeatedly held in compensation cases that each case must rest upon the particular facts in each case.”
The cases cited by plaintiffs and amicus curiae are conclusive against the applicant’s prayer for compensation under the facts found by the Commission and the theory of dependency by presumption, which appears to be the theory upon which the Commission made its award. We cite the cases for the accommodation of the reader: In re Carroll, 65 Ind. App. 146, 116 N. E. 844; Honnold on Workmen’s Compensation, vol. 1, § 82; Sweet v. Sherwood, 40 R. I. 203, 100 Atl. 316; State Ind. Accident Commission v. Downton, 135 Md. 412, 109 Atl. 63; Federal Mut. Liability Ins. Co. v. Comm., 187 Cal. 469, 202 Pac. 664; Stephens v. Stephens (Ind. App.) 132 N. E. 747; Miller’s Case, 244 Mass. 281, 138 N. E. 254; Schwartz v. Gerding, 69 Ind. App. 375, 121 N. E. 89; Ninnemanv. Comm., 171 Wis. 190, 176 N. W. 909;
It is not necessary to review the cases in detail. They support the contention that under the facts disclosed by the record no dependency is shown by presumption or otherwise. For that reason the award as made should be annulled and set aside. • None of the cases, however, cited by plaintiffs or amicus curiae show conclusively that there may not be an actual dependency in whole or in part if the case should be inquired into upon the theory of a dependency in fact, under the provisions of the last paragraph of subdivision (b).
We have assumed in this case to express our views in advance, because we are of opinion the Commission inadvertently adopted an untenable theory in disposing of the case. As to whether or not the circumstances of the minor child John Calvin Bradley are such as to make him a dependent in fact we are unable to determine, because as before suggested, it does not appear that that question was considered by the Commission. Neither the facts found by the Commission nor the evidence discloses the pecuniary circumstances of the minor child or his mother. ■
The only power the court has, in view of the record before us, is to annul and set aside the award.
It is so ordered.