I dissent.
As I interpret the majority opinion, it, in effect, announces the rule that when a husband and wife are not *Page 48 divorced but are living separate and apart dependency is determined by legal liability to support. Such a holding is contrary to the plain wording of our statute and overturns a principle that has been sustained by this court for many years. Even were I to consider that the previously decided cases should be overruled, to join with the prevailing members of this court, I would be required to ignore the statutory enactments.
Perhaps it might be helpful to set forth in chronological order the provisions of the original compensation act, the amendments thereto and the various cases interpreting the particular statutory section involved.
Section 3140, Compiled Laws of Utah 1917, defines dependency as follows:
"(a) A wife upon a husband with whom she lives at the time ofhis death;
"(b) A female child or female children under the age of eighteen years and a male child or male children under the age of sixteen years (or over such ages if physically or mentally incapacitated from earning) upon the parent with whom he isliving at the time of the death of such parent.
"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 employe, but no person shall be considered as dependent unless a member of the family of the deceased employe, or bears to him the relation of husband or widow, lineal descendent, 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." (Italics added.)
There were no substantial amendments made to this section until 1933. At that time, the section became identified as Section 42-1-67, R.S.U. 1933, and for the purposes of determining dependency reads the same as Section 42-1-67, U.C.A. 1943, which controls the present action. The section now reads, as follows:
"The following persons shall be presumed to be wholly dependent for support upon a deceased employee: *Page 49
"(1) A wife upon a husband with whom she lives at the time of his death.
"(2) Children under the age of eighteen years or over such age, if physically or mentally incapacitated, upon the parent, with whom they are living at the time of the death of such parent, or who is legally bound for their support.
"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."
Subsection (1) was not amended by the act of 1933 but subsection (2), which deals with minor children, enlarged the presumption of total dependency to those children whose father was legally bound for their support. To add to one specific provision dealing with children and to leave untouched the other provision dealing with wives indicates a legislative intent not to make it apply to the latter class. Considering only the statutory enactments, I can see no escape from the conclusion that the legislature intended to make special provisions for minor children who were living separate and apart from their father and limit the question of dependency in all other cases to the facts and circumstances existing at the time of the injury.
I now turn to the cases in which this court has construed these sections. One of the first cases decided by this court in which the original section was interpreted is the case ofMcGarry v. Industrial Commission, 63 Utah 81, 222 P. 592,593. The question involved was the dependency of a minor child of deceased. The 1917 act was being considered and the "liability for support" provision in cases of children was not then in the section. Mr. Justice Thurman, speaking for the court said: *Page 50
"We feel justified in assuming that the Commission arrived at the conclusion that this case is one in which dependency is presumed from relationship, and consequently classed it under the first paragraph of subdivision (b). No interpretation of the statute consistent with any known rule of construction can make this case one in which dependency may be presumed under subdivision (b). Living with his father at the time of his death, either actually or constructively, is just as essential to the establishment of dependency as is the relationship of parent and child.
"The Attorney General, appearing for the Commission in an illuminating and instructive brief contends for a different interpretation of the statute. If we read his contention aright, there is a presumption that a father and a minor child in a case of this kind are living together, whether in fact they are or not, and that in Utah, where there is a legal liability on the part of the father to support his minor child, total dependency under the Utah Industrial Act may be presumed. We cannot adopt this interpretation of the statute without disregarding what we believe to be our plain duty as interpreters of the law."
In 1924, this court in the case of Utah Apex Mining Co. v.Industrial Commission, 64 Utah 221, 228 P. 1078, 1079, interpreted the rule as it applied to husband and wife living separate and apart. In substance the facts were these: On the 13th day of September, 1914, Birdella Armstrong and Robert J. Armstrong were legally remarried in Butte, Montana. During the early part of 1918, Mrs. Armstrong became seriously ill. In the latter part of the same year, Mr. Armstrong left Butte to seek employment. Between 1918 and 1921, he returned to Butte on several occasions, the last visit being in July, 1921. Shortly after this last visit, he left to find work with no known destination. He was not heard of until his death on October 16, 1923. Mrs. Armstrong had no resources and was receiving alms from the county poor fund. She, in substance, testified that she did not anticipate receiving any support money from Mr. Armstrong after he left in 1921.
The Industrial Commission made an award to Mrs. Armstrong, but this was annulled by this court. Mr. Justice Thurman, again speaking for the court, said: *Page 51
"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 will be observed from the statute above quoted that there is no presumption of dependency in the case of a wife unless she is living with her husband in the relation of husband and wife at the time of his death. In all other cases the question of her dependency is to be determined in accordance with the facts in each particular case.
* * * * * "Notwithstanding the apparent hardship of the case, viewed from the standpoint of the husband's legal duty towards his wife and his utter failure to discharge the obligations resting upon him. the court is nevertheless without authority in this proceeding to give any effect to such considerations. Our duty to declare the law as we find it and apply it to the facts of the case."
The McGarry v. Industrial Commission case came before this court for a second time and this latter opinion is reported in64 Utah 592, 232 P. 1090, 39 A.L.R. 306. The Industrial Commission made a second award which was vacated on appeal for reasons not material to this decision. However, I quote an excerpt which clearly indicates the members of this court believed that legal liability could not be made the basis of a presumption of total dependency. I quote from page 600 of 64 Utah, page 1093 of 232 P., 39 A.L.R. 306:
"We are inclined to the views intimated in our former opinion, that where a mere infant, incapable of supporting itself and not competent either to claim or waive a right under the law, is abandoned by its father, whose duty under the law during his life was to support the child, such child, upon his father's death, within the purview of the Utah Industrial Act, becomes an actual dependent without regard to the question as to whether he has received or had *Page 52 the promise of support. Whether such child is wholly or partially dependent, of course, depends upon the facts of the particular case."
In the case of Utah Apex Mining Co. v. IndustrialCommission, 66 Utah 529, 244 P. 656, 657, the commission denied an award to the widow under facts and circumstances which were much stronger in favor of an award than they are in the present action. Stated briefly, the facts in that case were that applicant's wife at the time of the marriage was 15 years of age and the husband 20 years of age. They had considerable difficulty making a living and keeping a home and each was required to work. They separated at short intervals and would then go back to living together. In 1922 the wife went to live with her mother in Kansas and while she kept track of her husband through her sister, she did not correspond with him or receive any assistance. For the most part, she worked at odd jobs and supported herself. On one occasion she took steps towards obtaining a divorce on the grounds of non-support, but upon being assured by the husband that he would support her in the future, she dismissed the proceedings. The last separation prior to the death of the husband was for a period of two years. The wife was in needy circumstances and her income extremely limited. The following quotation indicates the principles the court relied on in that case to determine dependency:
"No claim was made that the wife was living with the deceased employee at the time of his death, but it was admitted that she had lived separate and apart from him for more than two years next preceding his death. The dependency of the wife was therefore not presumed by virtue of the relationship, but was to be determined `in accordance with the facts * * * existing at the time of the injury resulting in the death of such employe.' And the burden of establishing dependency was upon the applicant.Utah-Apex Mining Co. v. Industrial Commission, 64 Utah 221,228 P. 1078. It is plainly deducible from the statute itself that dependency is not presumed from or established by the existence of the legal relation of the wife to the husband, unless they are living together, and when, as in this case, they were not living together, dependency is not established *Page 53 unless something tending to show dependency, in addition to the legal duty of the husband, is shown.
* * * * * "But, viewing the matter from the standpoint alone of the evidence adduced by the applicant wife, we look in vain for anyfact or circumstance, other than the legal duty of deceased, toindicate that there was a reasonable probability that that dutywould have been fulfilled, either voluntarily or involuntarily. On the contrary, the additional facts and circumstances elicited plainly tended against the probability of future support." (Italics added.)
I believe Diaz et al. v. Industrial Commission, 80 Utah 77,13 P.2d 307, was the first case in which this court held that a wife living separate and apart from her husband was a dependent. In that matter this court held the separation was a temporary arrangement which did not destroy the marital relationship. There, the husband accepted work at a place removed from where he and his family had been residing. He, however, contributed to their support during separation. Even though physically separated, such an arrangement could well be regarded as living together, though, because of employment they were temporarily parted. Mr. Justice Straup, in comparing that case with Utah Apex Mining Co. v. Industrial Commission, 66 Utah 529,244 P. 656, supra, makes the following statement [80 Utah 77,13 P.2d 312]:
"The facts in the two cases last cited and in this case are strikingly dissimilar. Here the parties lived together for eleven years, during all of which time the applicants looked to the deceased for support and maintenance, and were supported and maintained by him. When the deceased left Dividend and went to Butte, there is no substantial competent evidence to show nor to justify an inference that such family relation was not to continue or that by mutual consent it was so changed that the deceased no longer was required to perform his legal and moral obligation to support the applicants, or that they no longer were to be supported by him, or no longer expected to receive support from him, and that they from thence on were required to shift from themselves without aid from the deceased. We do not see anything in the record to justify any such inference or conclusion. None such is justified, because the parties lived apart from each other for about a year and a half, about one year of which the deceased was in Butte. Further, the evidence shows that during *Page 54 the time he was in Butte he and his wife corresponded with each other, and that she received moneys from him, and, when he returned to Dividend, they visited each other, and on such occasions he also gave her money for the support of herself and of the minor child."
In his final summation on the question of dependency, Mr. Justice Straup continues:
"Thus, whether the case be regarded as falling within subdivision (a) or (b) of the statute referred to, we are of the opinion that the finding that there were no dependents is against and contrary to the legal competent evidence in the case, and hence it is disapproved and set aside."
The question of the presumption of dependency was not necessarily involved in that case as Mr. Justice Straup points out that the facts were sufficient to establish the relationship under the provision of the statute which requires dependency to be determined by the facts and circumstances existing at the time of the injury.
In Utah Fuel Co. v. Industrial Commission, 80 Utah 301,15 P.2d 297, 86 A.L.R. 858, the opinion of Mr. Justice Folland contains the following statement of facts:
"* * * The evidence is very meager, and shows merely that the four claimants were children of the deceased; that they and their mother, the wife of the deceased, had been deserted by him in Carbon county, Utah, a considerable time before his death, and that about a month after such desertion the children were taken by their mother to Seattle, Wash., where they now live with the mother and her parents; that a divorce action commenced by Jacobsen against his wife, Lavona Jacobsen, was pending in the district court of Carbon county, and had not been heard at the time of his death; that the employee was living with another woman who posed as his wife. This woman renounced any claim for compensation as a dependent. There is no proof that deceased had contributed anything to the support of the minors since the separation from his wife, and there is no competent evidence in the record as to the financial condition of the minors or of their mother nor how or by whom they have been supported."
The issues in that case were then set forth as follows:
"The issue presented by this review is a narrow one. Plaintiff urges that the finding of dependency is not supported by any evidence. *Page 55 Defendants contend that the finding of dependency is sufficiently supported by proof that claimants are the children of the deceased to whom he owes a legal duty of support, who have been, without fault on their part, living apart from him and receiving no support from him within a period of four years prior to his death."
An award made by the commission was annulled and the following quote sets forth the reasons therefor:
"It is conceded that the facts do not bring this case within subdivision (b) of the statute quoted because the children were not living with the employee at the time of his death. The dependency of these children cannot therefore be presumed by virtue of the relationship, but is to be determined `in accordance with the facts * * * existing at the time of the injury resulting in the death of such employee.' The burden of establishing dependency is upon the applicants. Utah Apex MiningCo. v. Industrial Commission, 64 Utah 221, 228 P. 1078.
"Two legal propositions are argued by the plaintiff in its brief: (1) Is the finding of dependency supported by proof that claimants are children of the employee living separate and apart from him without fault on their part? and (2) Can an award be made in favor of such children as dependents where the father in disregard of his legal obligations had not actually supported the children over a period of four years next preceding his death? As to the first proposition, it is plainly deducible from the statute that dependency is not presumed from or established by proof of the existence of the relation of father and child, unless the children are living with the father at the time of his death, and, when not living together, dependency is not established, unless facts tending to show dependency, in addition to the legal duty to support, are proved.
* * * * * "The right of support is a valuable asset which belongs to the children and which they have a right to realize on either presently or in the future. The right might have been enforced during the four years previous to the father's death, but no attempt, so far as shown, was made to do so. There is, however, in the evidence not anything shown on which to rest a finding that this right is of practical value or that it is reasonably probable that the obligation of the father would be fulfilled. The mere fact that the father is legally and morally bound to support his children does not necessarily establish that they are either partly or wholly dependent on him."
The last cited case was decided in October, 1932. It was again heard in this court in 1933 and the decision can be *Page 56 found in 83 Utah 166, 27 P.2d 434. At the second hearing before the commission, additional facts touching on the question of the dependency of the children at the time of the death of their father were produced and, based on these additional facts, the commission made a second award. This court affirmed the award on the grounds that there was evidence from which the commission could reasonably conclude the children were dependent at the time of the injury. This holding was not based on a presumption of total dependency but was based on evidence that the children were in fact dependent. The court, in its decision, re-affirmed the principles announced in the first decision and reemphasized that the minimum requirement necessary to establish probability that the obligation of the parent will be fulfilled.
I venture an opinion that the harshness of the statute as enacted by the legislature, when applied to minor children, was appreciated and was, in part, responsible for the amendment made in 1933, which made legal liability an additional ground for a presumption of total dependency when minor children survived.
There may be other cases decided by this court which announced principles in keeping with those quoted herein. However, this is the first case that announces a contrary principle. I am unwilling, in light of the many decided cases dealing with this subject, to concur with the results reached in the prevailing opinion. It may be that in the future, as it has been in the past, that hardships will be imposed in certain cases but the principles underlying the compensation act should not be impaired and we should not legislate to avoid what may appear in this case to be an undue hardship. In practically all of the cases dealing with dependency we have approved quotations and statements which announce that the purpose of the workmen's compensation act is to provide dependents with something in substitution for what has been lost by the employee's death. If this is the purpose, then dependency must be *Page 57 established by showing that the surviving wife had reasonable grounds to anticipate future support from the deceased. If she did not have reasonable grounds to so anticipate, then the death of the employee did not impair her means of support. A surviving wife should not be entitled to more from the employer than she might reasonably expect from her husband, had he survived.
If we were to apply the wording of the statute and the principles announced in the decided cases to the facts of this case, we would be required to hold that under the present state of the record dependency has not been established. Concededly, some ten years before the death of the employee, Mrs. Llewelyn had a legal right to be supported by her husband. This right existed either with or without a decree in a separate maintenance action. Assuming that the decree established dependency some ten years ago, that alone does not meet the requirements of the statute or of the decided cases. Mrs. Llewelyn, for the greater portion of ten years' time, supported herself and for at least five years immediately prior to the death of her husband received no support money and took no steps to enforce her rights in spite of the fact that the deceased was employed locally and the decree could have been enforced. At least during that period she had no reasonable anticipation that her husband would support her and even though at the time of their separation she had a legal right to support, this right under our decisions can be waived. In order for Mrs. Llewelyn to recover in this instance, I believe the record should establish, by substantial evidence that she was in fact dependent, that by her long failure to enforce her rights, she had not waived her legal right to support and that she had reasonable expectations that in the future she would receive support from her husband had he lived. Unless she placed some reliance upon the deceased employee to provided support money, in some measure or to some extent, at the time of his injury, then dependency, partial or total, does not exist. *Page 58
Much could be said about worthless husbands and their legal duty to support their wives. I, too, believe they should be dealt with harshly. Be that as it may, our duty is not to amend the act but to declare the law as we find it. Our further duty, as announced in many cases, is to sustain the award of the commission if there is substantial evidence to support its findings and conclusions. I would affirm the order of the commission because there was evidence from which the commission could reasonably conclude that applicant was not a dependent at the time of the injury and for the reason that I believe the prevailing opinion amends rather than interprets the statute.