Diaz v. Industrial Commission of Utah

• Decision Date: 21 July 1932
• Docket Number: 4812
• Citation: 13 P.2d 307,80 Utah 77
• Court: Utah Supreme Court
• Parties: DIAZ et al. v. INDUSTRIAL COMMISSION OF UTAH et al

13 P.2d 307

80 Utah 77

DIAZ et al. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 4812

Supreme Court of Utah

July 21, 1932

Original action in the Supreme Court by Lorenza Diaz and another to review a decision of the State Industrial Commission denying compensation to plaintiffs for the death of Cipriana Diaz while in the employ of the Tintic Standard Mining Company, employer, insured by the Continental Casualty Company.

AWARD ANNULED in so far as it directed defendant to make payment to State Insurance fund.

Willard Hanson and A. H. Hougaard, both of Salt Lake City, for plaintiffs.

Geo. P Parker, Atty. Gen., and Geo. H. Smith, R. B. Porter, and W Hal Farr, all of Salt Lake City, for defendants.

STRAUP J., ELIAS HANSEN, J. CHERRY, C. J., FOLLAND, J., EPHRAIM HANSON, J., concurring.

OPINION

STRAUP, J.

An application was filed by Lorenza Diaz and Esther Diaz before the Industrial Commission against the Tintic Standard Mining Company, the employer, and the Continental Casualty Company, its insurance carrier, for compensation for the death of Cipriana Diaz. It was alleged Cipriana Diaz was an employee of the mining company, and that in the course of his employment he was accidentally injured by being caught between two mine cars and struck in the chest from which injuries he died four days thereafter and left surviving him Lorenza Diaz, his wife, and Esther Diaz, a minor about fifteen years of age, the granddaughter of his wife, but a member of the family of the deceased. The commission found all the issues in favor of the applicants; that the deceased was injured in the course of his employment; that his death was the result of such injuries and the family relations as alleged by the applicants, but found that they at the time of the death were living separate and apart from the deceased, and hence were not dependents, and on that ground and no other denied compensation; and, as by the statute in such case made and provided, Laws Utah 1921, c. 67, ordered that the mining company and its insurance carrier pay into the State Insurance Fund the sum of substantially $ 1,000. From the order denying compensation to the applicants they prosecute this review of the proceedings and seek an annulment of the order. The whole of the record of all of the proceedings had before the commission is certified and transmitted to us. It is the contention of the applicants that on the record the evidence without substantial dispute shows that they within the meaning of the Industrial Act were dependents, and that an award ought to have been made in their favor.

The statute, Comp. Laws Utah 1917, § 3140, as amended by Laws Utah 1919, c. 63, provides that:

"The following persons shall be presumed to be wholly dependent for support upon a deceased employee:

"(a) A wife upon a husband with whom she lives at the time of his death.

"(b) A female child or female children under the age of eighteen * * * 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 on 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," etc.

The deceased and Lorenza Diaz were married in California in June, 1915. The certificate of marriage was put in evidence. Esther, then an infant and a granddaughter of the wife, became, and until the death of the deceased was, a member of his family and was supported, treated, and regarded by him as though she had been his own child. The married couple as husband and wife continued to reside and live together in California for about two years, when they moved to Delta, Utah, where they resided and lived together for about four years, during which time the deceased most of the time was employed in beet fields, in a sugar factory, and did other work, receiving about $ 4.50 a day which was used by him in the support and maintenance of his wife and Esther and of himself. Witnesses who knew them at Delta testified that the deceased and his wife lived together happily and seemed to be attached and devoted to each other. The wife part of the time at Delta kept a sort of boarding house or took in boarders, the proceeds of which also were used in the maintenance of the family. From Delta the parties went to Dividend, Utah, where the deceased was employed by the defendant mining company, and where they without dispute lived together as husband and wife for about another four and a half years, Esther all the time living with them as a member of the family, and being supported, maintained, and sent to school by the deceased. Part of such time the wife also took in boarders or kept a sort of boarding house at Dividend. Witnesses also testified that during such period the deceased and his wife lived together happily and treated and regarded each other with affection and kindness. So far, there is no substantial dispute in the evidence, except there was some evidence to show that the deceased and his stepson, a son of the wife by a former marriage, at times had some disagreements, and that some complaint was made by the deceased because the wife used some money for the support of her mother.

The deceased left his employment at Dividend in May, 1926. About a month before that he took up quarters at the bunkhouse of the mining company where he slept, and generally boarded elsewhere than at his home, but during that time he paid the rent for the house occupied by his wife. The wife testified he left the employment and went to Butte, Mont., to look for work as a miner. No testimony was given by the employer or by any one as to whether the deceased was laid off or voluntarily left his employment, except that the employer's caretaker testified that, while the deceased was occupying quarters at the bunkhouse, he stated to him that, "I have got to leave this camp or I will kill that man." The witness was asked and answered: "Q. What man? A. The man that ruined his home. Q. What man was that? A. Another man used to be around his house and that is why he moved to the bunkhouse, I suppose." The language as to the man referred to by the deceased was the language of the witness and not that of the deceased.

Another witness, a deputy sheriff, testified that the deceased told him in the spring of 1926 that "he was having family trouble; he said that there was another man trying to come in between he and his wife," and that he was going to leave because he did not want any trouble with "this fellow." Another witness testified that, while the deceased in his last illness was at the hospital and seriously ill, he was asked if he desired to have his wife notified, and he said not, that "she was no good." All such testimony was received in evidence over objections of counsel for the applicants.

The wife testified that there was no trouble between herself and the deceased, except little quarrels as heretofore stated, and that she and the deceased had lived together happily. In that she was corroborated by other witnesses living at Dividend. She further testified that, when the deceased left Dividend, there was no separation or severance of the family relation; that he left about May 24, 1926, to go to Butte to seek work as a miner, and there only part time was employed as a miner. The deceased returned to Dividend in June or July, 1927, and in the latter part of July of that year again entered the employ of the Tintic Standard Mining Company. In July or August, 1926, while the deceased was in Butte, the wife and minor child left Dividend and went to Virginia City, Nev. From there they visited her mother, who had gone to California, and then she and the child went to Bingham Canyon, Utah, about May, 1927. She testified that when her husband was in Butte she received three or four letters and moneys from him, and that she wrote letters to him. Neither could write, and each had others write for them. In that she was corroborated by her granddaughter, who then was about fourteen years of age, and by a witness who testified that at Butte he wrote letters for the deceased to the deceased's wife, and that in some of them mention was made of sending money to her. The wife testified that in one of the letters written to her at Virginia City the deceased requested her to go to Bingham Canyon to see what she could there do towards acquiring or opening a boarding house, and that in response thereto she visited her mother in California and then went to Bingham in May, 1927. She further testified that, after the deceased returned to Dividend, she there on several occasions visited him, and he on week-ends visited her at Bingham, and that on such occasions he gave her money for the support of herself and child; and that on the last visit made by him in November shortly before his death it was contemplated by them that, if he could get work at Bingham, he would leave his employment at Dividend and go to Bingham. Other witnesses testified that they saw the wife at Dividend after her husband had returned, and another witness that he accompanied the deceased part way when the deceased was on his way to Bingham.

The wife further testified that on September 16, 1927, she was in Salt Lake City attending a Mexican celebration, and that on that occasion she met her husband and stopped with him at the house of friends, and that on such visit he gave her $ 140. Other witnesses testified to the same circumstance and that the deceased on such occasion gave her $ 140. One of the witnesses testified that he saw the deceased in Salt Lake City, he thought, on the evening of September 15. The pay...