Gloubitz v. Smeed Brothers

• Decision Date: 04 April 1933
• Docket Number: 5946
• Citation: 21 P.2d 78,53 Idaho 7
• Parties: SOPHIE GLOUBITZ, Respondent, v. SMEED BROTHERS, Employer, and STATE INSURANCE FUND, Surety, Appellants
• Court: Idaho Supreme Court

21 P.2d 78

53 Idaho 7

SOPHIE GLOUBITZ, Respondent, v. SMEED BROTHERS, Employer, and STATE INSURANCE FUND, Surety, Appellants

No. 5946

Supreme Court of Idaho

April 4, 1933

WORKMEN'S COMPENSATION ACT-COMPENSATION-DEPENDENTS-CASUAL EMPLOYMENT.

1. Mother living on unprofitable farm with sons, one of whom worked for wages, which he shared with her until his death held dependent on him (I. C. A., sec. 43-1102).

2. Evidence held not to show that employer, not electing to come under compensation law, was engaged in agricultural pursuit (I. C. A., sec. 43-904, subds. 1, 8).

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Appeal from a judgment sustaining an award by the Industrial Accident Board. Affirmed.

Affirmed.

Leslie J. Aker, for Appellants.

The burden was upon claimant to show definite legal dependency existing at the time of the accident. (Sec. 6224, C. S.; 2 Schneider on Workmen's Compensation Law, secs. 371, 373; Globe Grain & Milling Co. v. Industrial Com., 57 Utah 192, 193 P. 642; Hancock v. Industrial Com., 58 Utah 192, 198 P. 169; Paul v. State Industrial Acc. Com., 127 Ore. 599, 272 P. 267, 273 P. 337.)

Carl A Burke, for Respondent.

Under the facts as shown by the evidence, the claimant, Sophie Gloubitz, is clearly a dependent within the meaning of sec 6224, C. S. (1 Schneider on Workmen's Compensation Law, sec. 373, p. 941; Geo. A. Lowe Co. et al. v. Industrial Commission of Utah 56 Utah 519, 190 P. 934; Combined Metals Reduction Co. et al. v. Industrial Commission of Utah et al., 74 Utah 247, 278 P. 1019.)

MORGAN, J. Givens, Holden and Wernette, JJ., and Sutphen, D. J., concur.

OPINION

MORGAN, J.

This is an appeal from a judgment of the district court approving and sustaining an award by the Industrial Accident Board granting compensation to respondent because of the death of her son, upon whom she claims to have been dependent for support.

Deceased, in the performance of a duty he owed appellant, Smeed Brothers, his employer, i. e., while driving a band of horses to be delivered to the party who had purchased them from the employer, met with an accident which resulted in his death and which arose out of and in the course of his employment.

The only question presented by the application for a hearing before the board and the answer thereto was as to the dependency of respondent upon deceased for support. It was alleged in the application that she was wholly dependent upon him and, answering that allegation, appellant said:

". . . . these defendants have recognized that the death of said Paul Gloubitz was compensable, and they accepted liability and paid the statutorial amount of $ 200.00 for funeral expenses and also expenses for the last sickness of the deceased. Defendants further allege that the said deceased was a young man about 19 years of age, and unmarried, and that he had no dependents. That the said claimant was not wholly or partially dependent upon the deceased for her support. That these defendants have paid everything that is required of them by law to be paid due to the injury and death of the said Paul Gloubitz."

Since the application for hearing and answer were filed, appellants have made additional contentions that deceased was engaged in an agricultural pursuit and that his employment was casual within the meaning of Idaho Code Annotated, sec. 43-904, subds. 1 and 3, and that his employer had not elected that the provisions of the Workmen's Compensation Law should apply to his employment. The statute on which that contention is based is as follows:

"None of the provisions of this act shall apply to:

"1. Agricultural pursuits. Agricultural pursuits, as used herein, shall include the caretaking and handling of livestock on enclosed lands and public ranges. . . .

"3. Casual employment; . . . .

"Unless prior to the accident for which the claim is made, the employer had elected in writing filed with the board, that the provisions of the act shall apply."

The employer carried workmen's compensation insurance with appellant, State Insurance Fund, but had not filed with the board an election that the provisions of the act should apply to it and its employees.

At the time of the death of her son respondent was about 55 years old, was without property, and her health was such she could not do heavy work, nor was she able to find employment of any kind at which she could earn wages. She was a married woman and her husband had been out of employment for a considerable time prior to the son's death, and was dependent upon and living with his married daughter in Seattle. Due to the poverty of the husband and wife,...