I concur. But my consideration of 42-1-67 U.C.A. 1943 leads to this line of reasoning: Keep in mind that this discussion is limited to a case where an employee under the Utah Compensation Law has died as a result of an accident arising out of or in the course of employment. The section expressly limits dependents to husband or wife, lineal descendant, ancestor, brother or sister,or a member of the family of deceased. The italicized group includes persons not included within the particular classes. In other words the spouse, decedent, ancestor, brother or sister may be dependent without being a member of the family of deceased. The section creates two presumptions of dependency: (1) That of a wife upon her husband with whom she is living at the time of his death; (2) that of a child under eighteen years or incapacitated, upon the parent with whom it is living, or who is otherwise legally bound for its support. I think this always includes a father unless he has been, by decree of court, or express provision of statute relieved from his obligation to support the child. These presumptions arise from the relationship, and are established without other proof. I think they are not rebuttable, and the defense cannot be made that the husband or father did not in fact support them and thus escape the statutory payments. Dependence in such cases is settled as a matter of law. "In all other cases, the question of dependency" is one of fact to be determined in each particular case. In all such cases, a claimant who is not under the legal presumption created by (1) and (2) must show as a matter of fact that he or she comes within the group who can be considered as dependents, and further that he or she was in fact dependent, in whole or in part, upon the deceased. The presumptions created by subdivisions (1) and (2) of the act have no connection with, relationship to, or bearing upon an investigation to determine the dependency of one other *Page 580 than a spouse or child of the deceased. If Vaughn, the father, was employed within the provisions of the Utah Compensation Act, and died as a result of an accident in the course of employment — not having been relieved by statute or decree of a competent court of his obligation of support — the minors would by law be presumed dependent on him and entitled to compensation for the loss of support. But in a case to determine whether the minors were actually dependent upon one other than the parent, the legal presumption of dependency on the father does not enter. The question here is one of fact, actual, not presumptivedependency. Why should these minors, for six years members of Campton's family, supported and maintained wholly by his effort, be bereft of such support upon the assumption that because they had an able-bodied father living, he would see they did not starve? As well indulge the presumption that the Social Welfare Department or other charitable institutions would provide for them. The statute says that, except in cases where the claimant was the wife or child of deceased the question of dependency is one to be determined from the facts in each case, without recourse to any legal presumptions whatsoever. Was claimant, as a matter of fact, dependent upon the deceased? If so, he is entitled to compensation provided he falls within one of the classes who can be dependents under the statute. If claimant is a child, minor or incapacitated, or a wife living with deceased at the time of his death, dependency need not be shown. The law establishes such from the relationship.
Here the record conclusively shows that these claimants were members of the family of Campton; that for six years they had been in fact wholly dependent upon Campton for their support; that they were living with him and were so dependent upon him at the time of his death. Since the order of the commission, as shown by the prevailing opinion was founded upon a misinterpretation of the statute, and a misapplication of the law, it follows that the same should be vacated and annulled. I therefore concur in the order made. *Page 581