American Smelting & Refining Co. v. Industrial Commission of Utah

• Decision Date: 05 November 1926
• Docket Number: 4459
• Citation: 68 Utah 383,250 P. 651
• Parties: AMERICAN SMELTING & REFINING COMPANY v. INDUSTRIAL COMMISSION OF UTAH et al
• Court: Utah Supreme Court

250 P. 651

68 Utah 383

AMERICAN SMELTING & REFINING COMPANY v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4459

Supreme Court of Utah

November 5, 1926

Original proceeding by the American Smelting & Refining Company to review an order of the Industrial Commission granting an award under the Industrial Act to Riwa Kawate for death of Imazo Kawate, her husband.

AWARD AFFIRMED.

Bagley Judd & Ray, of Salt Lake City, for plaintiff.

Harvey H. Cluff, Atty Gen., and J. Robert Robinson, Asst. Atty Gen., for defendants.

FRICK, J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.

OPINION

FRICK, J.

Plaintiff made application in the usual form for a writ of review to annul an award made pursuant to our Industrial Act. (Comp. Laws 1917, §§ 3061-3165) by the Industrial Commission of Utah, hereinafter called Commission, in favor of one Riwa Kawate, a resident of Japan and the widow of one Imazo Kawate who was accidentally killed on the 15th day of September, 1924, in the course of his employment while in the employ of the plaintiff.

The facts upon which the award is based are not disputed. Indeed, they are either stipulated or there is no conflict whatever. It appears from the record certified up by the Commission that in 1892 Riwa Kawate, hereinafter called the applicant, and the deceased, intermarried in Japan and that they thereafter continuously until the death of the deceased continued to be husband and wife. In 1900 deceased came to the United States, leaving his family, consisting of the applicant, two small daughters, his mother, and a sister, in Japan. One of the daughters died during childhood. The deceased, after arriving in this country, worked as a section hand in Wyoming until in 1916 or 1917, when he came to Utah and at the time of his death he was in the employ of plaintiff as a common laborer earning a daily wage of $ 3.35. Soon after arriving in this country the deceased commenced sending the applicant money. In most of the years commencing with 1900 and up to 1916 or 1917, he sent the applicant several amounts in each year so that during those years, according to the evidence, he had sent her the aggregate sum of $ 817.19. As before stated, in 1916 or 1917 the deceased came to Utah and the contributions for some unexplained reason ceased until in January, 1922, when he sent the applicant $ 500, and that after that, in 1924, he sent an additional sum of $ 135 through a friend, but which the applicant did not receive until the spring of 1925, after the death of the deceased. The deceased had thus contributed to the applicant from the time he arrived in the United States until his death the total sum of $ 1,452.19, the last $ 635 of which was sent during the last 2 1/2 years of his life. It also appears from the evidence that the applicant rented what was called a small farm from which she derived some income, so that she in fact was only partially dependent upon the deceased for the support of herself and the family. It also appears that the surviving daughter was married and was being supported by her husband. The mother of the deceased was, however, quite old and had to be supported, while the sister was deaf and dumb.

Upon substantially the foregoing facts in addition to jurisdictional facts not in question the Commission awarded the applicant a weekly allowance of $ 6.41 for a period not exceeding 312 weeks. The plaintiff was ordered by the Commission to pay all the payments that had accrued up to the time of the hearing in a lump sum and the remainder in quarterly installments. The Commission also allowed $ 150 additional as funeral expenses.

Plaintiff contends that the award is contrary to law and is not supported by any substantial evidence, and hence should be annulled. On behalf of the plaintiff it is vigorously insisted that, in view that the deceased made no contributions from 1916 to 1922, or for a period of approximately six years, the finding of the Commission that the applicant was dependent upon the deceased for support is not supported by any substantial evidence. It may be that under peculiar circumstances plaintiff's contention might have some force. It does not follow, however, that in every case where a considerable length of time intervenes between contributions that there is no substantial evidence that would support an...