Utah Fuel Co. v. Industrial Commission of Utah

• Decision Date: 11 February 1937
• Docket Number: 5796
• Citation: 64 P.2d 1287,91 Utah 491
• Court: Utah Supreme Court
• Parties: UTAH FUEL CO. v. INDUSTRIAL COMMISSION OF UTAH et al

64 P.2d 1287

91 Utah 491

UTAH FUEL CO. v. INDUSTRIAL COMMISSION OF UTAH et al

No. 5796

Supreme Court of Utah

February 11, 1937

Original proceeding under the Workmen's Compensation Act by the Utah Fuel Company, opposed by the Industrial Commission of Utah, to review an award of the Industrial Commission granting compensation to Mary N. Douros and others as compensation for the death of Tony Douros, deceased employee.

AWARD SET ASIDE, and cause remanded to the Industrial Commission with directions.

H. J Binch, of Salt Lake City, for plaintiff.

Joseph Chez, Atty. Gen., and Grover A. Giles, Asst. Atty. Gen., for defendants.

LARSON Justice. FOLLAND, C. J., and HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

LARSON, Justice.

This is a proceeding to review an award made by the Industrial Commission in favor of Mary N. Douros, the mother, Zoi Douros, a blind sister, and Mary L., Theodora and Louckia Douros, nieces of Tony Douros, deceased. The beneficiaries under the award all reside at Pyri, Thebes, Greece. The mother and sister are aliens. Tony Douros was accidentally killed while working in a coal mine of the Utah Fuel Company at Clear Creek, Utah, April 2, 1935. After proper hearing, the Commission on January 11, 1936, ordered the Utah Fuel Company to pay to Mary N. Douros, mother of deceased, for the benefit of all the beneficiaries named above, compensation at the rate of $ 4 a week for 312 weeks. The Fuel Company brings this proceeding for review of the award, contending: (1) That there is no evidence to support the award; that is, there is no proper evidence of dependency of any of the beneficiaries; (2) that the three nieces named as beneficiaries in the award are not within the classes named by the statute as possible dependents; and (3) that the dependents, if any, are aliens not residing within the United States or Canada, and the award should therefore be reduced by 50 per cent as provided by section 42-1-68, R. S. Utah 1933.

The undisputed facts in the record are as follows: That Tony Douros, deceased, was a native of Greece, 41 years of age, unmarried, had resided in the United States about 22 years, and was, at the time of his injury and death, employed as a miner by the Utah Fuel Company at Clear Creek, Utah; that his weekly wage at the time of the injury was $ 18.74 based upon a full year. His mother and sister were natives of Greece and had always resided there. The mother was a widow, and the sister, blind and unmarried. Deceased had been sending money to his mother in varying amounts at varying times for several years past. Tony's brother, Luke Douros, died at Bingham, Utah, and left surviving him a widow and three daughters. Some years later, Luke's widow died and the three girls were, by Tony, sent to Greece to his and Luke's mother. They are the three nieces of Tony mentioned in the award.

The Fuel Company first assails the award on the ground that there is no sufficient proof of dependency. There is undisputed evidence that deceased made some remittances to his mother and that she and the sister were in part dependent upon Tony for support. At the hearing, the company admitted partial dependency. Since this court has not the jurisdiction to pass upon the correctness of the Commission's findings if there is any evidence upon which they might be based, and can only set them aside if the Commission acted arbitrarily or capriciously, it follows that the finding of dependency as to the mother and sister of deceased must be sustained. Norris v. Industrial Comm. 90 Utah 256, 61 P.2d 413. There is not only evidence of this dependency, but also evidence as to the amount the deceased could, and would likely have paid to his mother and sister. Combined Metals Reduction Co. v. Industrial Comm., 74 Utah 247, 278 P. 1019.

The second assignment, however, presents a different question. Are the three nieces such persons, under the record in this case, as can be considered and held to be dependents under the statute? R. S. Utah 1933, 42-1-67, creates the presumption of dependency for a wife and children, and then says:

"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 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. The word 'child' as used in this title shall include a posthumous child, and a child legally adopted prior to the injury. Half brothers and half sisters shall be included in the words 'brother or sister' as above used."

Not every one to whose support a workman, who is accidentally killed, may have contributed is entitled to compensation. Compensation is payable only to those who may be considered as dependents under the law. If every one to whose support a workman may have voluntarily contributed at times, or to aid whom one may feel morally responsible, were to be adjudged dependents, the award ofttimes would be dissipated among so many that it would be of no value or help to any. The law was not written to make effective by legal mandate the Christian teaching that every man is his brother's keeper, but to secure to one's legal dependents some degree of compensation when their breadwinner is taken away. The statute has fixed, as persons who may be dependents within the act, the spouse, children, lineal descendant, ancestor, brother, sister, or member of the family of deceased. If the nieces come within this list, it must be as ...