In the Matter of the Guardianship of Joan OELERICH, alleged incompetent.
Supreme Court of Utah
July 10, 1964
393 P.2d 799
Parsons, Behle, Evans & Latimer, Salt Lake City, for respondent.
PER CURIAM.
This is an appeal from an order dismissing the petition for appointment of a guardian of the estate and person of respondent, Joan Oelerich, alleged to be incompetent.
Helen D. Oelerich, mother of respondent, petitioned the court to appoint Walker Bank and Trust Company guardian of respondent‘s estate and person, alleging that said respondent was incompetent. The court dismissed the petition on the grounds that the petitioner had not been diligent in proceeding with the action, and that a trust agreement had been executed whereby the First National Bank of Chicago had been appointed trustee of respondent‘s property received from her father‘s estate. The order recited that the dismissal was “not on the merits” and was granted without any determination of the incompetency of respondent.
Appellant urges that the trial court erred in dismissing the petition and in failing to determine the competency of the respondent.
The record shows that the issue of respondent‘s competency was not before the court at the hearing when the petition was dismissed, therefore, appellant‘s argument that the court erred in not determining the competency of the respondent is without merit. Appellant also contends that the court erred in dismissing the petition because a trust agreement had been entered into and petitioner was not diligent in proceeding with the action. As to these contentions, we held in Charlton v. Hackett, 11 Utah 2d 389, 360 P.2d 176 (1961), that appellant has the burden of showing error which will overcome the presumption of validity of the trial court‘s findings and judgment. The appellant here has failed to show error which would destroy this presumption.
Judgment affirmed. Costs to respondent.
UNITED PARK CITY MINES COMPANY, a corporation, Plaintiff, v. John W. PRESCOTT and The Industrial Commission of Utah, Defendants.
No. 10061
Supreme Court of Utah
July 10, 1964
393 P.2d 800
Brayton, Lowe & Hurley, A. Pratt Kesler, Atty. Gen., Salt Lake City, for respondent.
CROCKETT, Justice.
Plaintiff United Park City Mines Company seeks reversal of an order of the Industrial Commission granting defendant John W. Prescott workman‘s compensation on the basis of total and permanent disability.
Mr. Prescott, a man 64 years old at the time of his injury, had been employed by the plaintiff mining company and its prede
The plaintiff concedes that Mr. Prescott is in “essentially the position of an amputee whose stump is not sufficient to permit the use of an artificial leg.” But it contends that this is the defendant‘s only permanent injury significantly contributing to his loss of bodily function, and that he is therefore entitled only to the specific compensation of 180 weeks which the Act (
In considering the attack upon the order made these principles are to be kept in mind: that a workman may be found totally disabled if by reason of the disability resulting from his injury he cannot perform work of the general character he was performing when injured, or any other work which a man of his capabilities may be able to do or to learn to do;1 that it is the prerogative of the Commission to find the facts and to determine the degree of disability; that we should review the evidence in the light most favorable to the findings; and if when so reviewed, there is a reasonable basis therein to support them, the findings and order should not be disturbed.2
The report of defendant‘s attending physician, Dr. Harold B. Lamb, shows that in addition to the loss of his leg, he suffered these additional injuries: comminuted fracture of the right scapula [shoulder blade]; dislocation of the right sterno-clavicular joint [breastbone-collarbone joint]; severe internal injuries to the right chest and lung, including comminuted fractures of ribs 3 through 7 on right side with attending traumatic pneumonitis; and other injuries including to the scrotum and perineum.
While it is true that the evidence shows that Mr. Prescott made very good recovery from his injuries, from their nature it is fairly inferable that he had residual limita
The Division of Vocational Rehabilitation, after examining and testing Mr. Prescott, made its report that he is “not a feasible candidate for vocational rehabilitation” and recommended that he “be considered totally and permanently disabled for employment.”3
From the foregoing it will be seen that there is ample basis in the evidence to justify the Commission‘s determination that the defendant was totally and permanently disabled. Absent any capricious or arbitrary action, the order should be, and is hereby, affirmed. Defendant Prescott is awarded his costs.
McDONOUGH, CALLISTER and WADE, JJ., concur.
HENRIOD, Chief Justice (concurring in the result).
I concur in the result, but think the report of the Division of Vocational Rehabilitation should not be a contributing factor in the main opinion‘s determination to affirm the Industrial Commission‘s order. I take it that such report is designed to indicate whether the applicant could be made available for work by vocational training, and not to determine any physical functional rating. Such report may be in the negative, yet an applicant well might be capable of earning a living through talents not responsive or designed to be developed through stereotyped or existing vocational training facilities.