Utah-Apex Mining Co. v. Industrial Commission

• Decision Date: 11 September 1924
• Docket Number: 4145
• Court: Utah Supreme Court
• Parties: UTAH-APEX MINING CO. et al. v. INDUSTRIAL COMMISSION et al

228 P. 1078

64 Utah 221

UTAH-APEX MINING CO. et al. v. INDUSTRIAL COMMISSION et al

No. 4145

Supreme Court of Utah

September 11, 1924

Proceeding under the Industrial Act by Birdella Armstrong for the death of Richard J. Armstrong, her husband, claimant opposed by the Utah-Apex Mining Company, employer, and the AEtna Life Insurance Company, insurance carrier. After an order of the Industrial Commission awarding compensation to claimant and denial of an application for rehearing, a writ of review was brought.

Award of the Commission VACATED and ANNULLLED.

Bagley Judd & Ray, of Salt Lake City, for plaintiffs.

Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen., for defendants.

THURMAN J. WEBER, C. J., and FRICK and CHERRY, JJ., GIDEON, J., concurring.

OPINION

THURMAN, J.

Richard J. Armstrong, an employee of the plaintiff mining company, was killed in an accident arising out of and in the course of his employment at Bingham, Utah, October 16, 1923. The plaintiff, AEtna Life Insurance Company, carried the insurance.

On November 26, 1923, Birdella Armstrong, of Butte, Mont., claiming to be the widow of the deceased workman, filed application with the defendant Commission for compensation, under the Utah Industrial Act. A subsequent application was filed December 17, 1923, by one Laura C. Armstrong, of Salt Lake City, also claiming to be the widow of deceased. These applications were heard in due course and evidence taken, both written and oral, and the cause submitted. On the evidence so taken together with stipulation of the parties, the Commission, after finding the jurisdictional facts, including the accident and death resulting therefrom, found the following facts material to a decision of the case:

"III. That on the 26th day of April, 1913, Birdella Armstrong and Richard J. Armstrong were divorced by the district court of the Second judicial district of the state of Montana. Thereafter, on the 13th day of September, 1914, Birdella Armstrong and Richard J. Armstrong were legally remarried at Butte, Mont., and were not divorced at any time subsequent to the said remarriage of September 13, 1914. Subsequently thereto the said Birdella Armstrong and Richard J. Armstrong resided continuously at 2633 South Placer street, in the city of Butte, Mont., and so lived together up to on or about March or April of 1918; that on or about the date last mentioned Mrs. Birdella Armstrong became seriously and mentally ill, and owing to the severe and excessive nervous troubles of the said Birdella Armstrong, her husband Richard J. Armstrong, was compelled to and did move away from the family dwelling house and boarded elsewhere, but continued to make contributions to her and visited her weekly, and continued said contributions until on or about December, 1918, when, it being considered that it would assist the said Birdella Armstrong in recovering from her affliction should he absent himself, Richard J. Armstrong left Butte to seek employment, with no particular destination in mind; that since the 13th day of September, 1914, when Richard J. Armstrong and Birdella Armstrong were remarried, no process, notice, or other papers of any divorce proceedings or any knowledge of any divorce proceedings upon the part of Richard J. Armstrong, or herself, ever came to the knowledge or notice of the said Birdella Armstrong.

"That the said Richard J. Armstrong returned to Butte subsequent to December, 1918, and again in July, 1921, the decedent left Butte, stating he was seeking employment elsewhere, with no known destination, but advised and informed Amanda Brown, the mother of Birdella Armstrong, that as soon as he was located and had secured work he would communicate with her and arrange for the maintenance of his family. That since that time he has not been heard of until the time of his death, and his whereabouts were unknown to Birdella Armstrong.

"That owing to Birdella Armstrong's ill health, she had no source of revenue and has been receiving alms from the county poor fund of Silver Bow county, Mont. That on the date of the death of the deceased she was totally dependent upon her husband, Richard J. Armstrong, for maintenance and support; in fact, her circumstances were such that she absolutely required the assistance of her husband, Richard J. Armstrong, and had it been possible to locate him he would have been compelled by law to support his wife, the said Birdella Armstrong."

The Commission concluded as follows:

"In view of the foregoing findings the Commission concludes that on the 16th day of October, 1923, Richard J. Armstrong was killed by reason of an accident arising out of or in the course of his employment, while regularly employed at Bingham, Utah, by the Utah-Apex Mining Company, an employer subject to the State Industrial Act; that on said date the decedent left surviving him Birdella Armstrong, his lawful wife, whose circumstances were such as to require financial support from her husband; therefore the Utah-Apex Mining Company or AEtna Life Insurance Company should pay to Birdella Armstrong, for the benefit of herself as widow of Richard J. Armstrong, deceased, compensation in the sum of $ 16.00 per week for a period of 312 weeks, beginning October 17, 1923; all accrued payments to date to be made in a lump sum and thereafter once every month unless otherwise ordered by the Commission; that the claim of Laura C. Armstrong, whose marriage to Richard J. Armstrong was illegal, should be denied."

The Commission entered an order in accordance with the findings.

An application for rehearing was seasonably made by plaintiffs and denied.

The case comes before us on a writ of review. It is contended by plaintiffs that the findings are contrary to the evidence, and that the conclusions are not supported by the findings. The gist of the contention is that there is no competent evidence to show that the applicant, Birdella Armstrong, was a dependent of the deceased, Richard J. Armstrong, at the time of his death, and that therefore she is not entitled to compensation.

There is no doubt, under the evidence, that Birdella Armstrong was the lawful wife of deceased at the time of his death; neither is there any doubt that she was and is in needy circumstances, and, on account of her affliction and inability to support herself, is dependent, more or less, on public or private charity for support. It becomes necessary to determine whether these and other circumstances disclosed by the record are sufficient to bring the case within the purview of the law justifying the allowance of compensation. These circumstances have impelled the court to give to the evidence the most careful and painstaking examination.

It appears from the findings, which are not in serious dispute the deceased, after his second marriage to Birdella, in 1914, lived with her and contributed to her support until the month of December, 1918, when he left her for the reasons stated in the findings. He did not return to Butte where his wife resided until February, 1921, and during his absence of more than two years she never heard from him, nor did he in any manner contribute to her support. On returning to Butte, as above stated, he boarded with his wife's mother until the July next following, when he again left for parts unknown. During the period from February to July, 1921, while he was in Butte, he furnished his wife no financial or other support whatever, notwithstanding her affliction and need of assistance. After leaving Butte in July, 1921, Birdella never heard from him again until the report came of his death in October, 1923. So that the undisputed evidence shows that from December, 1918, until October, 1923, when the accident occurred which resulted in his death, Richard J. Armstrong, the deceased workman, never contributed a farthing for his wife's support, notwithstanding a short portion of the time he was living in the same town and working at least part of the time. In addition to all this, the record conclusively shows she did not expect him to support her or furnish her any financial assistance. Just why such was her attitude is to the mind of the writer an insolvable problem. After testifying at considerable length as to her adverse financial circumstances and as to her husband's leaving Butte in July, 1921, without telling her where he was going, she was asked by an interrogator, whose attitude towards her was friendly, if her financial condition was such that had she known her husband's whereabouts would she have required that he support her. She said, "No, sir." The next question was, "Were you in need of financial assistance?" She answered, "Yes, sir." Then she was asked, "Did you know that your husband was legally bound to support you?" She answered, "Yes, sir." Finally, she was asked, "Why wouldn't you have exacted it, if you had known where he was"? She answered, "Well, on the treatment of my family." In response to further questioning, she reiterated her...