Brklacic v. Industrial Commission

• Decision Date: 10 July 1924
• Docket Number: 4128
• Citation: 63 Utah 582,227 P. 1036
• Court: Utah Supreme Court
• Parties: BRKLACIC et al. v. INDUSTRIAL COMMISSION (STANDARD COAL CO., Intervener)

227 P. 1036

63 Utah 582

BRKLACIC et al. v. INDUSTRIAL COMMISSION (STANDARD COAL CO., Intervener)

No. 4128

Supreme Court of Utah

July 10, 1924

Original proceeding in mandamus by Milka Brklacic and others to compel the Industrial Commission of Utah to recognize and hear their claim to compensation for the death of George Brklacic, in which the deceased's employer, the Standard Coal Company intervened, and joined as plaintiff.

ALTERNATIVE WRIT QUASHED, and proceedings dismissed.

B. L Lieberman, of Salt Lake City, for plaintiffs.

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

Willard Hanson, of Salt Lake City, for intervener.

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

OPINION

CHERRY, J.

This is a proceeding in mandamus whereby the plaintiffs seek to compel the Industrial Commission to recognize and hear their claim to share as dependents in the compensation awarded to others on account of the accidental death of George Brklacic (also known as George J. Berkeley) which occurred in the course of his employment by the Standard Coal Company. By intervention, the employer joins in the plaintiffs' petition.

The deceased was instantly killed on October 27, 1922. On November 19, 1922, Mr. W. T. Gunter, a duly licensed and practicing attorney at law, addressed a letter to the Industrial Commission stating that deceased left a dependent wife, Milka Brklacic, and a mother, Anna Brklacic, in the "old country," whom he represented; that he desired to make a claim for them, "for any insurance or money to which they may in any way be entitled by reason of the death of said George Berkeley [George Brklacic]" and that he "would like to have an opportunity to be heard on any and all matters that may arise in the premises or in connection with this matter."

The Commission acknowledged receipt of the letter and advised that the dependents mentioned should make a claim to the Commission as provided by section 3140, subsec. 1, Comp. Laws Utah 1917, as amended in 1921, and further advised that investigations had disclosed that deceased left a wife and child at Standardville, Utah. Thereafter and on December 13, 1922, Mr. Gunter addressed a communication to the Commission stating among other things that--

"I have written to the mother and wife, in the old country, for full and complete information concerning the facts and for proof of marriage, powers of attorney, etc. So soon as I receive certain and definite information I shall advise you and if the facts justify such course I shall make claim before you on behalf of this wife and mother either or both. If the facts do not justify such course I shall not proceed and shall so advise you. In the meantime I should like to have all rights or possible rights protected."

Thereafter and on December 29, 1922, Ada Berkeley and George William Berkeley, of Standardville, Utah, claiming to be the wife and minor son respectively of deceased, made formal application for compensation. Notice of the filing of the claim of Ada Berkeley et al., and the time of hearing thereon, was duly given to W. T. Gunter, attorney, and he was requested to be present at the hearing should he "have anything to introduce supporting your claim of a dependent mother and lawful wife of the decedent in the old country."

A further communication dated January 24, 1923, was addressed by the Commission to Mrs. Milka Brklacic, at her address in Jugo-Slavia, fully stating the circumstances of the situation and requiring her to file a claim on or before October 26, 1923. A copy of this letter was mailed to W. T. Gunter, her attorney.

Two hearings were conducted by the Commission, of both of which previous notice was given to W. T. Gunter, then acting as attorney for the alleged foreign dependents. The first hearing on January 23, 1923, was confined to matters of deceased's employment and wages, the circumstances of his death, and the expenses of his burial, with no inquiry as to his dependents. At the second hearing on April 17, 1923, evidence was received in support of the dependency of Ada Berkeley, alleged wife, and George William Berkeley, alleged minor son of deceased. At the conclusion of this hearing it was announced that the decision would be held in abeyance "until other parties do or do not present their claim."

On July 28, 1923, the Commission received the following letter:

"Thursday, July 26, 1923.

"Mr. Mike Ruby, P. O. Box 76, Murray, Utah--In the matter of George William Berkeley, a minor and Ada Berkeley (wife), guardian against the Standard Coal Company, now pending before the Industrial Commission of Utah, as case No. 773, over the death of George J. Berkeley, wherein I gave notice I might file a claim for a part of the allowance on behalf of the wife of deceased living in Jugo-Slavia. I feel we have no right to delay the Commission or other claimants in the matter any longer and I cannot do so and it is not right that we delay the matter any longer. The Commission might justly take the position we are trifling with it.

"So far as I am concerned I shall give no more attention to the matter and the Commission may proceed to make any award it may deem just.

"I am quite sure that you have acted in the best of faith as have I, but the wife in the old country has not done her part. She should not complain of your acts or mine.

"I shall mail a copy of this letter to the Commission that they may know you and I shall take no further action in the matter.

"Very truly yours, W. T. GUNTER."

On October 31, 1923, the Commission made and rendered its decision awarding compensation to Ada Berkeley, for the benefit of herself and for George William Berkeley, a minor child, and for an unborn child, in the sum of $ 16 per week for a period of not to exceed 312 weeks, etc. The decision made no reference to the claim of plaintiffs. A copy of the decision was served on W. T. Gunter on November 1, 1923.

On November 30, 1923, the employer, Standard...