Geo. A. Lowe Co. v. Industrial Commission of Utah

• Decision Date: 29 June 1920
• Docket Number: 3484
• Citation: 56 Utah 519,190 P. 934
• Court: Utah Supreme Court
• Parties: GEO. A. LOWE CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

190 P. 934

56 Utah 519

GEO. A. LOWE CO. et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 3484

Supreme Court of Utah

June 29, 1920

Rehearing denied July 15, 1920.

Petition by Robert J. Eames and wife, as father and mother and Lucy K Eames, to the Industrial Commission of Utah for an award against Geo. A. Lowe Company, employer. Award granted. Application for rehearing denied, and the employer and the AEtna Life Insurance Company, insurer, bring certiorari to the Industrial Commission.

AWARD SUSTAINED.

De Vine, Stine & Gwilliams, of Ogden, for plaintiffs.

Dan B Shields, Atty Gen., and Chez & Barker, of Ogden, for defendant.

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

OPINION

CORFMAN, C. J.

On the 27th day of December, 1919, George W. Eames, of Harrisville, Utah, met his death by reason of an accident arising out of and in the course of his employment with the plaintiff Geo. A. Lowe Company. The plaintiff AEtna Life Insurance Company was the insurance carrier of Geo. A. Lowe Company.

Under the provisions of chapter 100, Laws of Utah 1917, as amended by chapter 63, Laws of Utah 1919, Robert J. Eames and Lucy K. Eames, the father and mother of said George W. Eames, filed their petition for compensation with the Industrial Commission of Utah, claiming that they were dependents of the decedent. After the issues were joined and a hearing had, the said commission made an award against the plaintiff Geo. A. Lowe Company, granting to the said claimants compensation at the rate of $ 11.25 per week for a period of 284 weeks but not to exceed $ 3,199. After an application for a rehearing, which was denied by the commission, the proceedings were brought to this court for review under a writ of certiorari sued out by the plaintiffs. They contend that the award made by the commission should not be sustained: First, for the reason that the evidence was insufficient to establish the dependency of the claimants; secondly, that the commission failed to make any finding of the average weekly wage of decedent; and, thirdly, that the award made was excessive.

The record shows that claimants are the parents of the decedent. They owned and lived upon a farm heavily incumbered by a mortgage. Their family included two daughters, under age, the decedent and his grandparents, all of whom reside together and were dependent upon the income from the farm for the necessaries of life. The decedent, age twenty years and ten months, had assisted his parents in doing the general farm work, except when occasionally employed elsewhere, at which times he would contribute his earnings to the family support, including apparel for himself and at times for other members of the family. At the time of the accident in which decedent was killed he was an employe of the plaintiff Geo. A. Lowe Company and had been earning under said employment three dollars and twenty-five cents per day six days in a week, for a period of about three months. During the time he was thus engaged with the Geo. A. Lowe Company he had obtained his lodging and meals without charge at claimant's home. On account of his absence from work on the farm it was arranged between himself and the claimants that he should contribute his earnings in payment of other help employed to assist in doing the farm work. As to the exact amount in dollars and cents derived from, and the full extent of, the dependency of claimants upon the decedent, the record is not certain and clear, but that they were dependent upon and that they received practically all of decedent's earnings and the benefits of his labor cannot be doubted from a reading of the evidence. All that may be said in this connection is that decedent was at the time of the accident capable of and was earning three dollars and twenty-five cents per day, that all of his life he had contributed his labor and earnings to the support of claimants, and that there is substantial evidence in the record tending to show that claimants were dependent upon decedent's labors and earnings for the support and maintenance of themselves and the members of their family. Dependency in this class of cases has been universally held to be a question of fact to be determined by the commission, not the reviewing court. Dosker's Compensation Law, section 170.

Under the facts and circumstances of this case as disclosed by the record, we think partial dependency of the claimants was fully established within the purview and meaning of our statute. Further, the decision of the commission was final and conclusive on this question as well as all other questions of fact where there is some substantial testimony in the record to sustain it. Smith v. National Sash & Door Co., 96 Kan. 816, 153 P. 533; Herrick Case, 217 Mass. 111, 104 N.E. 432; In re Kelley's Case, 222 Mass. 538, 111 N.E. 395; Walz et al. v. Holbrook, Cabot & Rollins Corp., 170 A.D. 6, 155 N.Y.S. 703.

The next question presented by the plaintiff is whether or not the failure of the commission to make a finding as to the daily wage of decedent at the time of the accident invalidates the award.

Having established partial dependency upon the decedent, under the provisions of section 3140, subd. 3, as amended by chapter 63, Laws of Utah 1919, claimants were entitled to "60 per cent. of the average weekly wages, but not to exceed the maximum of sixteen dollars per week, and to continue for all or...