Schurler v. Industrial Commission

• Decision Date: 19 April 1935
• Docket Number: 5618
• Citation: 43 P.2d 696,86 Utah 284
• Court: Utah Supreme Court
• Parties: SCHURLER v. INDUSTRIAL COMMISSION et al

43 P.2d 696

86 Utah 284

SCHURLER v. INDUSTRIAL COMMISSION et al

No. 5618

Supreme Court of Utah

April 19, 1935

Original proceeding by Mrs. Madge Schurler to review an order of the Industrial Commission denying plaintiff compensation under the Workmen's Compensation Act for death from accidental injury sustained by C. A. Schurler in the course of his employment by the receiver of the Salt Lake & Utah Railroad Company, to which Salt Lake & Utah Railroad Company and the Columbia Casualty Company were also made parties.

ORDER AFFIRMED.

Ralph T. Stewart, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen.. and A. E. Moreton, of Salt Lake City, for defendants.

WOLFE Justice. ELIAS HANSEN, C. J., and FOLLAND, EPHRAIM HANSON and MOFFAT, JJ., concur.

OPINION

WOLFE, Justice.

Certiorari to the Industrial Commission of Utah to review an order denying compensation to the applicant, Mrs. Madge Schurler. It is undisputed that C. A. Schurler was killed in the course of his employment on or about the 11th day of November, 1933, and that his employer, the receiver of the Salt Lake & Utah Railroad Company, was an employer of more than three employees. The case presents two questions: (1) Does the applicant come under any class of dependents included in the Workmen's Compensation Act (Rev. St. 1933, 42-1-1 et seq.) by either presumption or fact? and (2) was the deceased at the time of his death engaged in intra or inter state commerce? The facts necessary to the solution of the first question are as follows: That in 1910 Mr. Schurler married a woman whose first name was Verna; that she deserted him and apparently went to Nevada to live in a house of ill fame, from where it is thought she went to California and had not been heard of since; that she has been absent from her husband's home for more than 7 years, and nothing has been learned during or since that time as to whether she is living or dead; that on the 10th day of August, 1911, Schurler instituted an action for divorce against Verna; that summons in said action was never served upon her; that no divorce decree was ever granted; that in 1911, after the desertion by Verna, the applicant came to live with the deceased for the purpose of keeping house and taking care of his mother, who was ill and suffering from the effects of an accident. She lived in that capacity for approximately a year. Applicant was told by deceased that he wished to marry her when the divorce was obtained. Applicant and deceased agreed to be husband and wife; they lived together as such, he introducing her as Mrs. Schurler. He bought her a wedding ring and built a home for applicant and his mother, where they lived together as a family, she caring for the home and for decedent and his mother, and the decedent furnishing the living for the three of them until the death of his mother in 1928. Thereafter decedent continued to support and live with applicant as his wife. Applicant nursed decedent when he was ill and decedent nursed applicant when she was ill. He secured policies of insurance payable to her as his wife. She executed notes and mortgages on real and personal property as his wife. For approximately 21 years they lived together as man and wife.

The finding of the commission was that they were never legally married and that she was in fact living with deceased as his common-law wife, and that she was supported by him and dependent upon him for her maintenance and support. There were no surviving children. The conclusion of the commission was that at the time of his death decedent was engaged in interstate commerce. The denial of compensation was put on this ground and not on any conclusion that the applicant was not a dependent of deceased as meant by the act.

In this state a common-law marriage cannot be consummated. By that we do not mean to say that a common-law marriage consummated in a state where it is recognized would not be valid here. In this state marriage must be consummated by a ceremony as provided by the statutes. There is no question, therefore, but that the applicant does not come under the class of presumed dependents as provided for by section 42-1-67, R. S. Utah 1933, providing that the wife shall be presumed to be dependent upon the husband with whom she lived at the time of his death. The same section goes on to provide:

"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 to such employee, but no person shall be considered as dependent unless he is a member of the family of the deceased employee, or bears to him the relation of husband or wife, lineal descendant, ancestor, or brother or sister."

A person, to be a member of the family of a decedent within the meaning of the partial section just quoted, does not need to be a blood relation, nor does such person have to bear any of the relationships as set out after the word "or" in the above-quoted subsection. Utah Fuel Co. v. Ind. Comm. et al., 64 Utah 328, 230 P. 681. The only question in this division of the case is as to whether Mrs. Schurler can be considered a member of the decedent's family as that was meant by the Compensation Act. The point seems to have been squarely decided in both the cases of Utah Fuel Company v. Industrial Commission, just cited, and Sanders v. Industrial Comm., 64 Utah 372, 230 P. 1026, although the facts in each of those cases differed somewhat from the facts here. In the Utah Fuel Company case the applicant had lived with the deceased ostensibly as wife for more than 6 years prior to the date of the accident. During all that time she had a husband living from whom she had not been divorced and the deceased had a wife living from whom he had not been divorced. In that case there was no question but that both the husband of the applicant and the wife of the decedent were living, whereas, in this case, it is not known whether the wife of the decedent was living at the time of his death, more than 7 years having elapsed since the deceased had heard from or about her. We shall discuss later whether that element changes the legal situation.

In the Sanders Case the applicant obtained a divorce from her husband which became final on October 25, 1923. She was married at Evanston, Wyo., to the deceased on June 16, 1923, before the expiration of 6 months from the filing of the interlocutory decree. The deceased and the applicant purposely went to Wyoming to avoid the effect of the 6 months' provision. The court held that the marriage was void and that the deceased, who was killed on March 8, 1924, less than a year after the pretended marriage to the applicant, had been living in an adulterous relationship. The Sanders Case differs from the present case in the fact that the parties intentionally went to Wyoming in order that they would not have to wait the required 6 months. At the time of the pretended marriage ceremony the applicant in that case had an undivorced husband living. In both cases above discussed compensation was denied.

The applicant in this case admits that, in order to find for her the principle laid down in the two Utah cases above discussed would have to be abandoned by this court, because the principle in both of those cases is to the effect that a person living in an illicit relationship with an employee at the time he is killed is not a member of his family, even though the two intended to assume in good faith the marriage relationship. The cases hold that there is no moral or legal duty on the part of the deceased to support the woman who was not married to him, and therefore that the applicant was not a member of the decedent's family, even though they lived together under the same roof in one community, and in one case with a child of the applicant who had been incorporated in the community. We have sympathy for the applicant's position in this case. The unfortunate woman looked upon herself as the wife of decedent, and they...