Halling v. Industrial Commission of Utah

• Decision Date: 27 December 1927
• Docket Number: 4588
• Citation: 71 Utah 112,263 P. 78
• Court: Utah Supreme Court
• Parties: HALLING v. INDUSTRIAL COMM. OF UTAH et al

263 P. 78

71 Utah 112

HALLING v. INDUSTRIAL COMM. OF UTAH et al

No. 4588

Supreme Court of Utah

December 27, 1927

Proceeding under the Workmen's Compensation Act by Rose J. Halling, for herself and children, for the death of Mariner Halling, her husband, claimant, opposed by Henning Henderson, employer, and the Hartford Accident & Indemnity Company, insurance carrier. The Industrial Commission denied claimant's application, and she brings an original proceeding in the Supreme Court to review its order.

REVERSED AND REMANDED, WITH DIRECTIONS.

Bagley Judd & Ray and A. H. Nebeker, all of Salt Lake City, for plaintiff.

Harvey H. Cluff, Atty. Gen., J. Robert Robinson, Asst. Atty. Gen and Young & Boyle, of Salt Lake City, for defendants.

HANSEN, J. THURMAN, C. J., and CHERRY, STRAUP, and GIDEON, JJ., concur.

OPINION

HANSEN, J.

This is a proceeding to review an order of the Industrial Commission dismissing the application of Rose J. Halling for compensation for the death of her husband, Mariner Halling. The application was made under our Industrial or Workmen's Compensation Act for the benefit of the applicant and her five minor children, who are also the children of the deceased.

Mariner Halling died on December 7, 1926. Prior to his death, and on September 9, 1925, the deceased filed a written application before the commission for adjustment of a claim for compensation, alleging that on August 8, 1925, he was injured by an accident arising out of and in the course of his employment by Henning Henderson. The Hartford Accident & Indemnity Company, a corporation, was the insurance carrier.

Hearing was had on the application of the deceased October 7, 1925. The commission found:

'The applicant, on the 8th day of August, 1925, was not injured by reason of an accident arising out of or in the course of his employment while regularly employed by Henning Henderson."

The commission rendered its decision denying compensation to the applicant, Mariner Halling, February 17, 1926. Application for rehearing was filed March 9, 1926, and denied by the commission on the same day. No appeal was taken from the decision denying Mariner Halling compensation.

On February 11, 1927, within a year after the death of Mariner Halling, Rose J. Halling, on behalf of herself and minor children, filed her application with the Industrial Commission for compensation on account of the death of her husband. In her application it is alleged that, between the 1st and 10th of June, 1925, and again on August 8, 1925, Mariner Halling was injured by an accident arising out of and in the course of his employment by Henning Henderson, an employer subject to the provisions of the Industrial Act; that the employer and his insurance carrier denied liability for compensation; and that Mariner Halling never recovered from the injury sustained, but died as a direct result thereof December 7, 1926. The application also contains the other necessary allegations to entitle the widow and minor children of deceased to compensation in the event the death of Mariner Halling was caused by an accident arising out of or in the course of his employment by Henning Henderson. The defendant Henning Henderson, and his insurance carrier, the Hartford Accident & Indemnity Company, answered the application, denying that Mariner Halling died as a result of any accident arising out of or in the course of his employment by Henning Henderson.

Application for compensation of Rose J. Halling came on for hearing before the Industrial Commission March 9, 1927. Before any evidence was offered, the commissioner before whom the hearing was to be had observed that, under date of February 17, 1926, the Industrial Commission of Utah had rendered a decision upon the application of Mariner Halling denying him compensation for an injury, which he, Mariner Halling, claimed had occurred August 8, 1925, while in the employ of Henning Henderson; that, at the time the hearing was had on said application of Mariner Halling, evidence was also offered as to an injury which Mariner Halling claimed he received between June 1, and June 10, 1925, while in the employ of Henning Henderson; that, while the commission did not mention the injury claimed to have been sustained by Mariner Halling in June, it, none the less, had such claim in mind, and the commission, in fact, intended to deny compensation for both claimed injuries. Thereupon the commissioner who was conducting the proceedings inquired of counsel for Rose J. Halling and her minor children, and also of counsel for the defendant Henning Henderson and the Hartford Accident & Indemnity Company, if they would agree that the record in the hearing upon the application of Mariner Halling might be made part of the record in the hearing upon the application of Rose J. Halling and her minor children. Counsel for both the applicants and the defendants agreed that this might be done. It was further stipulated and agreed between counsel for the applicants and defendants and the commissioner who was conducting the hearing that before any further proceedings were had upon the application of Rose J. Halling and her minor children, the commission should determine whether or not the decision rendered upon the application of Mariner Halling precluded Rose J. Halling and her minor children from recovering compensation for the death of Mariner Halling.

On April 9, 1927, the commission rendered its decision denying compensation to the applicants because, as stated by the commission, it had denied compensation to Mariner Halling, and therefore "his wife and minor children, who claim through him, could be in no better position before the commission than the deceased himself, and that therefore we are without jurisdiction to entertain this application, and that for this reason the case should be dismissed."

The sole question before us for review in this proceeding is whether or not the commission properly dismissed the application of Rose J. Halling and her minor children for the reasons stated by the commission in its decision. To determine this question it is necessary to briefly review the history of the laws of this state with respect to the rights of a surviving widow and minor children in a claim growing out of an injury resulting in the death of the husband and father. It is a well-recognized and generally accepted rule that, at common law, an action for personal injury abates upon the death of the person injured. Tiffany, Death by Wrongful Act (2d Ed.) c. 1, § 1; Mason v. Union Pacific R. R. Co., 7 Utah 77, 24 P. 796. Since the enactment in England of the statute commonly known as Lord Campbell's Act in 1846, most of the states in this country have enacted laws embodying the same general provisions as are contained in the English act. Prior to statehood Utah had such a law. Comp. Laws Utah, 1888, § 3179, provided:

"When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this * * * section, such damages may be given as under all the circumstances of the case may be just."

This provision of Comp. Laws Utah 1888, supra, remained the law of this state, with some slight changes not material here, until the enactment of Laws Utah 1921, c. 67, §§ 3133 and 3140. The provisions of Comp. Laws Utah 1888, § 3179, were construed by the Supreme Court of the Territory of Utah in the case of Mason v. Union Pacific R. R., supra, decided in June, 1890. It is there held on page 82 of the Utah report and page 797 of the Pacific report:

"The wife or children do not succeed to the husband's or father's cause of action; that dies with him. But, immediately upon his death, a new cause of action arises in their favor. The statute then gives them a new cause of action. It does not revive or continue the husband's or father's cause of action. Whitford v. Railroad Co., 23 N.Y. 465; Hegerich v. Keddie, 99 N.Y. 258, 1 N.E. 787, ."

Similar results were reached by this court in the case of Candland v. Mellen, 46 Utah 519, 151 P. 341. To the same effect are the following cases cited in plaintiff's brief: Earley v. Pacific Electric R. R. Co., 176 Cal. 79, 167 P. 513, L.R.A. 1918A, 997; Munro v. Dredging Co., 84 Cal. 515, 24 P. 303, 18 Am. St. Rep. 248; Burk v. Arcata & Mad River Railway Co., 125 Cal. 364, 57 P. 1065, 73 Am. St. Rep. 52; Blackwell v. American Film Co., 189 Cal. 689, 209 P. 999; Tann v. Western Pacific Railway Co., 39 Cal.App. 377, 178 P. 971.

When Utah became a state in 1896, its Constitution, art. 16, § 5, provided:

"The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation."

Under our Workmen's Compensation or Industrial Act, which was enacted by the Legislature in 1917, it is provided that:

"For injuries, however, resulting in death, the dependents of the deceased employee are given the right, within such time as the commission by rule shall prescribe, to elect (a) between bringing suit at law against such employer to recover damages for such death and in the event of suit said dependents must prove negligence on the employer's part before they can recover, or (b) to accept the benefits allowed to dependents of deceased employees by this title in the event of death. If they elect (b) they shall not be entitled to sue such employer at law to recover damages. If they elect (a) they thereby forfeit any rights to compensation under this title, and...