Globe Grain & Milling Co. v. Industrial Commission of Utah

• Decision Date: 12 November 1920
• Docket Number: 3535
• Citation: 57 Utah 192,193 P. 642
• Parties: GLOBE GRAIN & MILLING CO et al. v. INDUSTRIAL COMMISSION OF UTAH
• Court: Utah Supreme Court

193 P. 642

57 Utah 192

GLOBE GRAIN & MILLING CO et al. v. INDUSTRIAL COMMISSION OF UTAH

No. 3535

Supreme Court of Utah

November 12, 1920

Appeal from Award of State Industrial Commission.

Proceeding by Martin Groen under the Workmen's Compensation Act to obtain compensation for the death of his son, Dirk Groen opposed by the Globe Grain & Milling Company, the employer and the Continental Casualty Company, insurance carrier. There was an award of compensation, and the employer and insurance carrier appeal.

AWARD ANNULLED and cause remanded.

George H. Smith and Robert B. Porter, both of Salt Lake City, for appellants.

H. B Maw, of Salt Lake City, for appellee.

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

OPINION

FRICK, J.

On August 30, 1919, one Dirk Groen, hereinafter referred to as the deceased, while in the employ of the Globe Grain & Milling Company, and in the course of his employment, was injured, from which injury he subsequently died. The deceased, at the time of his death was 20 years and 11 months of age, and his father, Martin Groen, hereinafter referred to as applicant, made application to the Industrial Commission, hereinafter styled commission, for compensation under our Workmen's Compensation Act. Two of the commissioners (one dissenting) made an award in favor of the applicant. The Globe Grain & Milling Company, the employer of the deceased, and the Continental Casuality Company, the insurance carrier, hereinafter called plaintiffs, present the record of the proceedings before the commission, including all the evidence produced at the hearing, to this court for review, and ask that the award be set aside and annulled upon the ground that the evidence does not support the findings of the commission and does not justify the award.

The act known as the Industrial Commission Act authorizes this court to review the findings of the Commission in certain particulars, to wit: (1) "Whether * * * the commission acted without or in excess of its powers;" and (2) "if findings of fact are made, whether or not such findings of fact support the award under review." Laws Utah 1919, c. 63, § 3148a. This court has repeatedly held that it will not weigh the evidence, but will examine the same for the purpose only of determining whether there is any substantial competent evidence to sustain the findings or to support the award made by the commission. In this case the plaintiffs vigorously assail the award upon the ground that there is no evidence whatever in support of the finding that the applicant was to any degree dependent upon the deceased at the time of his injury and death. Our statute (Comp. Laws Utah 1917, § 3140), after defining who are presumed to be dependents as matter of law, in referring to cases like the one at bar, proceeds:

"In all other cases, the question of dependency, in whole or 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 employe, but no person shall be considered as dependent unless a member of the family of the deceased employe, or bears to him the relation of husband or widow, lineal descendent, ancestor, or brother or sister." (Italics ours.)

While it is conceded that the applicant comes within the statute just quoted, yet it is insisted that the evidence utterly fails to establish the fact of dependency. In that connection counsel for applicant insists that under the statute the question of dependency is one of fact, and in view that the commission has found that fact in favor of the applicant this court is bound by the finding of the commission.

As before stated, this court will examine into the evidence only to determine whether there is any substantial competent evidence in support of the findings of the commission. If there is such evidence the findings will be sustained, but if there be no substantial competent evidence to support the findings this court, on application of the aggrieved party, is required to annul the award which is based on such findings. It is elementary that if there is no conflict in the evidence and no conflicting inferences may be drawn therefrom the question of whether a particular finding is supported by the evidence or not is purely a question of law. The rule is well stated by the Supreme Court of Appeals of West Virginia in the headnote to the case of Poccardi v. State Comp. Com'r, 79 W.Va. 684, 91 S.E. 663, in the following words:

"The question of dependency in England and in this country, under Workmen's Compensation Law, is one of fact and not of law., to be determined by the evidence in each particular case; but where the evidence is all certified and there is no conflict, a question of law, and not of fact, may be thus presented."

The question for solution in this case therefore is whether there is any substantial competent evidence in this record in support of the finding that the applicant was dependent upon the deceased at the time of his injury and death.

The plaintiffs produced no evidence at the hearing, and hence the finding of the commission is based solely upon the evidence produced by the applicant. Briefly stated, the controlling facts deduced from the evidence are that the applicant came to this country from Holland about seven years prior to the death of the deceased; that his first wife died in Holland, and that he remarried about 4 years prior to the accident; that at the time of the death of the deceased applicant's family consisted of his wife and a daughter 16 years of age, who lived with him; that the deceased joined the United States army in September, 1917, as a volunteer; that during the year 1917 the deceased from his earnings prior to entering the army gave the applicant $ 10 at three different times, making $ 30 in all, which he used in paying an indebtedness which he incurred in bringing his family to this country from Holland; that while the deceased was in the army he purchased three $ 50 Liberty Bonds, which he sent home to applicant, and which the latter returned to the deceased after he returned from France. In testifying to the circumstances under which he received the $ 30 aforesaid, the applicant, in answer to the following questions, testified:

"Q. Did he [the deceased] ever give you any other money at any time? A. No, not any other time. Q. What was that money given to you for? A. That was to help me out to pay for the emigration."

The testimony of applicant's wife is precisely to the same effect. The $ 30 were given to him during the summer of 1917 or several years prior to the death of the deceased. While there is not a scintilla of evidence that the deceased ever gave the applicant anything after that time, there is evidence coming from the latter that he did not. True, the applicant says that he might have used the proceeds from the three $ 50 Liberty Bonds, but that he did not do so, because he thought the deceased needed the money for clothes, etc., after he returned from France and was discharged from the army. It is also true that the applicant testified that the deceased told him that in case he, the applicant, should ever need help the deceased would help him; that the applicant did the same...