Except as herein indicated, I concur with both the prevailing opinion and Mr. Justice Wolfe's concurring opinion.
Here, at the time of her husband's death, the wife was living separate from him under a decree of separate maintenance granted to her in 1936. Since that time and up to his death in 1947, he has paid for her support not to exceed $225.00, none of which was paid within the last 5 years prior to his death. Although during most of the time she had been employed, at the time of his death she was not, and at that time he was receiving about $150.00 per month. The commission refused to grant her an award on the ground that she failed to show a reasonable expectancy of future support from him had he lived, and, therefore, failed to show dependency on him. In Utah Apex Mining Co. v. Industrial Commission,66 Utah 529, 244 P. 656, 658, under similar facts we held that,
"to establish her dependency upon deceased, it was incumbent upon the applicant to show not only that deceased owed her that legal duty of support, but that there was a reasonable expectation that the duty would be fulfilled".
In that case, we held that there was not sufficient evidence to support a finding that she had such reasonable expectancy and therefore vacated the award. If that decesion was correct then in my opinion we should sustain the decision of the commission in this case.
If the evidence is sufficient from which facts could reasonably be found which would sustain the decision of the commission, then we should affirm it. In both this case *Page 39 and the Apex case, we are reversing the commission, so unless we overrule the law as therein stated, we must conclude that the evidence in this case is much stronger to the effect that the applicant here has a reasonable expectancy of support from deceased than it was in the previous case. In my opinion there is no justification in the evidence for us to hold that in theApex case the evidence would not support a finding that the widow had a reasonable expectancy of future support from the deceased had he lived, and to hold in this case that the evidence conclusively establishes such a reasonable expectance. The evidence on that question is fully as favorable to the existence of a reasonable expectancy of future support in the Apex case as it is here. It is true that here there is a decree of support but, that merely shows a legal obligation to support and it has no tendency to prove that the applicant here would have been able to collect from decedent had he lived. In the Apex case the court assumed that there was a duty to support but reversed solely because it found no reasonable expectancy that such duty would be fulfilled. Such being the case, she could have readily obtained a judgment for support. In that case, there is no claim that the duty to support was doubtful. From reading the prevailing opinion in this case it appears very easy for her to collect support money from him under the direction of the court but in practice it is usually not that simple. If support could have been forced here, it could have been done in the Apex case. I think the evidence here is ample in view of the fact that she has not collected a cent during the last 5 years of his life, to justify the finding that she had no reasonable expectancy of support from him had he lived.
In my opinion, it is clear that in the Apex case, the commission was not reversed on the ground that no legal liability of support was shown. There we assumed that legal liability was established but held that dependency under the Workmen's Compensation Law was not established unless a reasonable expectance of future support was shown *Page 40 and that no such a showing in that case was made. As I understand it, that case was reversed solely on that ground. I think there can be no question but that the evidence in that case was sufficient to sustain a finding that the decedent owed applicant a legal duty to support her at the time of his death.
In the Apex case, Mr. Justice Straup registered a vigorous dissent with which I fully agree. I also agree with Mr. Justice Wolfe's comments thereon and his analysis of the cases in his concurring opinion herein. I agree therewith because I believe that the inevitable result therefrom is that dependency of a wife living apart from her husband can be shown under the Workmen's Compensation Law the same as in a divorce or separate maintenance action, without showing a reasonable expectancy of future support from him. If such is the law, we must overrule the decision in the Apex case, and should here expressly do so. In my opinion, the difference in the facts in the two cases do not justify a different conclusion, and the attempt here made to distinguish them can only lead to confusion, because those distinctions cannot be consistently followed.
Because I fully believe that the legislature did not intend to require greater proof under the Workmen's Compensation Law in order to establish dependency in this kind of a case than is required in a divorce or separate maintenance action, I concur with the result. I recognize the force to Mr. Justice Latimer's argument that the legislature by later enactments has acquiesced in our previous constructions of this law on this question. But if such was the legislative intention then a man may wrongfully desert his wife and leave her destitute and still if he can wrongfully avoid contributing to her support during her life time, by that wrongful act his employer will be exonerated from contributing to her support after he is dead, where he loses his life accidentally in the course of his employment, and the result will be that she will be placed on the public for her *Page 41 support although neither she nor the public have acted wrongfully. I do not believe that the legislature so intended.