In this case Winnetta J. Llewelyn, the widow of Isaiah J. Llewelyn, deceased, seeks compensation as a dependent under Section 42-1-67, U.C.A. 1943 (of our Industrial Accident Code). The Industrial Commission denied her compensation for the following reason, as they state it:
"That the applicant was not living with the deceased at the time of his accident or his death; that she received no support whatever from him for several years prior to his death; that she was therefore not dependent upon deceased for support, at the time of his accidental injury and death."
Section 42-1-67, U.C.A. 1943 defines dependents and has the following to say about a wife:
"The following persons shall be presumed to be wholly dependent for support upon a deceased employee:
"(1) A wife upon a husband with whom she lives at the time of his death. * * * *Page 33
"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, * * *."
Applicant was not living with her husband at the time of his death. In 1936 she obtained a decree of separate maintenance from the deceased by which decree he was required to pay her $25.00 per month. Deceased was injured December 1, 1946, and died March 27, 1947. The hearing before the Commission took place in November and December, 1947. Applicant did not live with deceased after the 1936 decree. The last five years of the time since the decree she received nothing from him, but prior thereto she had collected $200.00 to $225.00 by legal proceedings against him to enforce the decree. Included therein was a garnishment of his wages. Except for the time around his injury and death, she had worked steadily and earned as high as $75.00 per month. At the time of the hearing she was not working. She states that this was on account of her age. She has no independent income or property and has at times received support from their children, who are grown and some of them married. Her son was in the war but made no allotment to her then as she was earning her own living. The decree of separate maintenance is still in full force and effect.
Deceased was a man of 62 years of age, earning at the time of his injury and death approximately $150.00 per month.
The Commission erroneously sustained an objection to the introduction of the findings, conclusions and decree of separate maintenance, so that the facts above set out as to them rest solely upon oral testimony — not, of course, the best evidence thereof. Such oral testimony, however, is uncontroverted — in fact, there is no dispute in this case over its facts pertaining to dependency. *Page 34
The question is one of law: Are those facts sufficient to show that applicant was dependent upon deceased at the time of his injury?
We invite attention to the following decisions of this court, not only for the principles therein ennunciated, but for the references therein to other decisions upon the question of dependency: Utah Apex Mining Co. v. Industrial Commission,66 Utah 529, 244 P. 656; American Smelting Refining Co. v.Industrial Commission, 68 Utah 383, 250 P. 651 (length of time of non-support alone, not conclusive). Diaz v. IndustrialCommission, 80 Utah 77, 13 P.2d 307.
Before discussing the Industrial accident law, it seems advisable to consider the nature of a decree of separate maintenance, under our law.
Our Sections 40-4-1, 3 and 5, U.C.A. 1943, indicate that the foundation of an award of money for the support of the wife or husband in separate maintenance is that of dependency. The injured party legally escapes the necessity of living with the supporting party as a condition precedent to that support. The bonds of matrimony between the two are not severed. The court retains jurisdiction of the case to modify its allowance as the circumstances may justify. Sec.40-4-3; Anderson v. Anderson, 54 Utah 309, 181 P. 168;Cawley v. Cawley, 59 Utah 80, 202 P. 10.
Such presumably is the nature of the decree granted applicant in 1936. Let us assume then, that instead of the accident on December 1, 1946, the husband had presented to the court in which the decree of separate maintenance was rendered, an application for an order vacating the alimony provision on the grounds that applicant was no longer dependent upon him — would it have been granted? The applicant was out of work at that time; she had not collected anything from her husband for five years; for the first six years after the decree of 1936, she collected, by various legal proceedings against him, about the equivalent *Page 35 of 9 months of payments; she had no income or property of her own; prior to December 1, 1946 her husband never made an effort to have her dependent status adjudicated to be different than in the 1936 decree; and prior to December 1, 1946, she had worked regularly for as high as $75.00 per month, — these certainly are insufficient facts to justify a finding of a change of circumstances adverse to her. Such an adjudication would be equivalent to throwing the wife upon relief.
In the case of Diaz et al. v. Industrial Commission, cited above, this court discusses various phases of the question so far as a wife living apart from the husband, without a separate maintenance decree is concerned. In that case we call attention to the fact that a failure of the husband to support his wife does not necessarily negative her dependency; and also that her actions in failing to seek support may evidence her acquiescence in his denial of his obligation. But the court in that case was not discussing a relationship where a court has already adjudicated dependency and ordered the husband to affirmatively act. It would seem that the adjudication of dependency in a separate maintenance decree should be presumed to continue until overthrown by evidence in negation thereof. The burden should be upon the shoulders of the one attacking the decree to prove that negative.
In the case of Utah Apex Mining Co. v. IndustrialCommission, [66 Utah 529, 244 P. 658] cited above, this court discusses, inter alia, the probability of the wife, in the future, obtaining support from the husband either "voluntarily or involuntarily." Obviously, in the present case the support would not, in the future, have been voluntarily given; but certainly the chances of acquiring involuntary support from the deceased would have met with little difficulty where the status of dependency has been adjudicated and the husband is capable of supporting his wife. There is a distinct and reasonable probability that the obligation of support under such a decree would be satisfied by direction *Page 36 of the court. The separate maintenance decree is evidentiary of the fact that the wife is rightly living separate and apart from the husband through no fault of her own, but is entitled to support. Upon the question of responsibility for separation there are innumerable authorities. See A.L.R. Digests under "Workmen's Compensation," Section 83. Our code section (cited) covering separate maintenance are predicated upon the idea that the separation is necessary due to the misconduct of one of the parties. When such a necessity has been adjudicated, the wife's separation should not be used against her as if she had voluntarily walked out of the home without cause.
A wife, under a separate maintenance decree such as in this case, is in a comparable position to the wife living with her husband — that is to say: A wife living with her husband raises a presumption of dependency under the statute; a wife living separate and apart from her husband under a separate maintenance decree has the dependency element determined by the decree. So far as the amount of dependency is concerned, that is to be determined as of the time of the injury.
Dependency and right to support are not, of course, synonymous. The wife, though not requiring the support of the decree, might be entitled to its benefits at least until the decree is modified. In the present case, however, the right to support at the time of the injury of the husband was concurrent with a proven condition of lack of independent means of support in the wife.
We are of the opinion that the facts of this case show, as a matter of law, that applicant, in spite of her separation from deceased in his life time, was his dependent.
Another issue has been raised in this case. The Commission found that deceased sustained an accidental injury arising out of or in the course of his employment and that as a result of that injury he died. When applicant filed a petition for rehearing, attacking *Page 37 the Commission's finding that she was not a dependent of deceased, she included therein this statement:
"Applicant requests a rehearing solely and exclusively on the following question: * * *"
This is followed by a statement of the issue of dependency. In defendants answer they state:
"The defendants object to the findings of the Commission that the cause of death of the deceased was due to the injuries sustained in his employment. * * * Should application for rehearing be granted, the defendants demand the right to reopen the entire matter for the purpose of introducing further evidence on the question of cause of death of deceased."
This answer does not appear to have been filed within 30 days of notice of the Commission's decision; so it can not itself be considered a petition for rehearing. However, we do not believe that applicant for rehearing can limit the issues on petition for rehearing to just those included in this petition for rehearing, if the protesting party desires that other matters be considered, which if properly decided, would sustain the Commission's decision as to result. The matter of other grounds for correcting error, if error there be, having been called to the attention of the Commission by the issues joined upon the petition for rehearing, and before the Commission made a final determination of petition for rehearing, the Commission has been afforded full opportunity to correct any of such errors. Under such circumstances we see no merit in insisting that if the successful party before the Commission desires to defend the result of the Commission's decision, upon any ground that contemplates a modification of the findings of the Commission he must first timely file a petition for rehearing setting out that ground.
We have examined the evidence in this case and we find support therein for the Commission's decision as to the injury arising out of or in the course of employment and *Page 38 being the cause of death. We are powerless to decide otherwise.
The order of the Commission is annulled.
McDONOUGH, J., concurs.