The Industrial Commission in all probability and not without reason founded its order principally on the case of Utah ApexMining Co. v. Industrial Commission, 66 Utah 529, 535,244 P. 656, 659. The meat of that case is reflected by the following quotation from it:
"The case as stated by the applicant presented three outstanding facts: First, that the parties were living separate and apart for a considerable period of time; second, that the husband during that period made no contribution whatever towards the support of his wife; and third, that the wife was able to and did support herself. The natural presumption from these facts is against dependency."
There was a strong dissent in that opinion by Mr. Justice Straup in which it was said:
"The facts and circumstances of the applicant's living separate and apart from the deceased are recited in the prevailing opinion. Upon them I do not see anything to justify a finding — much less a conclusive finding — that she, in so living separate and apart from him, in any particular was at fault, or had forfeited her legal right to support from him, or had violated any of her marital obligations. The facts but show that she so lived separate and apart from him and was compelled to earn her own living because of his inability to support her or because of his neglect to do so, or both. But I do not see wherein she had acquiesced in or condoned any such conduct on his part, or had forfeited her legal right to look to him for support. In other words, on the disclosed facts, her status as a wife was in all legal respects the same as though she had been living with him at the time of his death. I do not see wherein it was any different, except as to the method of making the status and dependency evident. In the one instance, the parties living together, the dependency is made evident by the mere statutory presumption. In the other, where they are not living together at the time of the husband's death, the dependency may be, as it here is, made evident by the facts. That is, the disclosed facts here show all that is embodied in or implied by the presumption. To say that the applicant is not entitled to any award because the deceased had not contributed much if anything *Page 42 toward her support is but to say that a wife, though living with her husband at the time of his death, is entitled to no award if he had not during the marriage relation contributed much if anything toward her support, by reason of which she was compelled to earn her own living."
I think the dissent contains the better reasoning. The prevailing opinion in that case appears to make expectation of support by the husband the basis of a finding that the separated wife was dependent. It states,
"There is nothing in her conduct during this time from which it can be inferred that she entertained the least expectation of ever being supported by her husband."
In American Smelting Refining Co. v. IndustrialCommission of Utah, 68 Utah 383, 250 P. 651, 652, the commission awarded compensation to a wife living separate from her husband. This court, following the time honored principle that it could not "be said that the award made by the Commission is not supported by some substantial evidence" (as to dependency), affirmed. The facts were that the applicant widow and the deceased intermarried in Japan and lived together until deceased left his family and came to America in 1900. He continued from time to time, up to his death in 1924, with some long arid periods of non-remittals intervening, to send money to the applicant. This court rejected the contention that in view of deceased's failure to send any money between 1916 to 1922, the finding of the commission that applicant was dependent upon deceased for support was not supported by substantial evidence.
The case of Diaz et al. v. Industrial Commission, 80 Utah 77,13 P.2d 307, is not in point. While there was ample evidence of dependency, even though the husband and wife lived apart because of conditions other than any revealed fault of either spouse, the case was decided on the ground that the husband's death by pneumonia was not due to any injury received in his employment. Therefore, *Page 43 the discussion by Mr. Justice Straup on the question as to whether under the facts there was dependency was dicta.
In McGarry v. Industrial Commission, 63 Utah 81,222 P. 592, 594, this court by unanimous opinion written in 1923, while section 3140, Compiled Laws of Utah 1917, was still in force and before the amendment of 1933 which added to subsection (2) of Section 42-1-67, R.S.U. 1933 (now Sec. 42-1-67 U.C.A. 1943) the words "or who is legally bound for their support," said:
"* * * As contended by counsel for applicant, it would indeed be a reproach to the lawmakers of the state if it could be successfully contended under the provisions of our Industrial Act that a minor child might be a dependent and entitled to compensation if the father had only performed his legal duty during his life, and furnished or promised the child some support, but because the father failed in his legal duty, even to the point of violating the criminal laws of the state, therefore the child should not be held to be a dependent entitled to compensation; yet such is the interpretation plaintiffs would have this court give to the statute under review. Inasmuch as we are not compelled to do so by the plain meaning of the language employed, we are not inclined to so interpret the statute.Besides this, we know of no authority which holds that thefurnishing of support during the life of deceased is absolutelyessential to the establishment of actual dependency." (Emphasis added.)
When that opinion was written, the statutory presumption of dependency of a child pertained only in cases where the child was living with the parent at the time of the death of the parent, just as the present statutory presumption is limited to those cases where the wife is living with the husband at the time of his injury or death. In all other cases, the question of dependency, in whole or in part, was to
"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."
The above quoted language of the opinion would, before the amendment above noted, apply equally to a wife or to *Page 44 a child, with the exception that a wife could by her conduct, as a young child could not, abandon any right she had to come against the husband.
There is force to the argument of Mr. Justice Latimer that the Legislature by adding the words "or who is legally bound for their support" to the subsection dealing with presumptions of dependency in the case of minor children, and not adding it to the section dealing with the presumption in the case of the wife showed an intent to make the legal obligation alone in the case of a child sufficient to presume dependency regardless of whether the child was living with the parent at the time of his or her injury but not to employ that presumption in favor of a wife who was maritally separated from her husband. But to say that the case falls out of the class in regard to which the presumption is available is not the same as saying that in that class of cases it must be shown that the husband actually contributed to the wife's support nor that she retained an expectation of his future support in order to show dependency. I think it is sufficient if it is shown that he had the ability to support her, that she was in need of support and that she had done nothing affirmatively to show that she had abandoned him as a potential means of support. The legislative intent was to make the question of dependency, in the case of a wife maritally separated from her husband, one to be determined in accordance with the existing facts of each particular case at the time of the fatal injury to the husband employee. I desire to emphasize that the language of this court in McGarry v. Industrial Commission, supra, part of which is quoted above, is still applicable to the question of the wife's dependency. The furnishing of support during the life of the deceased is not essential to "the establishment of actual dependency."
As said in Merrill v. Penasco Lumber Co., 27 N.M. 632,204 P. 72, and cited with approval by this court in the McGarry case: *Page 45
"`But just as the existence of the marital status does not of itself prove dependency, so the lack of actual support by the husband does not of itself negative dependency. The failure to support is only one circumstance for consideration. The reasons for it, the length of its continuance, the mutual attitude and means of the parties, the probable resumption of duty, and other similar matters may have a distinct bearing on the subject. If dependency were determined only by the fact of contribution to support, a wife and children might be dependent one week and cease to be the next according to the caprice of the husband and father. Such a theory lacks support from authority.'"
As I view it, the defendants relied on the fact that no contributions had been made to the wife for some time before his injury and that she had been earning her own way assisted by her sons. The Commission evidently thought that the language employed in Utah Apex Mining Co. v. Industrial Commission, supra, controlled and thought this case came under it.
Granting, dubitatively, the correctness of that decision, this case stands on a different footing. Here there was a decree requiring decedent to pay $25.00 per month during separation. It was in effect at his death although nothing had been paid to her for several years. As stated by the main opinion, this decree must be considered as a pronouncement by a competent court that the applicant, at least at the time the decree was entered, was dependent on the deceased. And I think it has some efficacy in establishing dependency at the time of the injury which causedthe death. The decree to pay $25.00 a month to the wife was a continuing one until modified. The fact that the husband made no effort to have it modified on the ground that the wife was no longer in need of it, may be some indication that the need for it continued and that she was therefore dependent at the time of the injury which resulted in his death. The husband's duty to support his wife, lies at the very root of the duty to pay any compensation to the wife. The relationship of husband and wife, plus the duty which the law imposes on the husband, gives birth to the duty to *Page 46 contribute to that support and on such duty rests the duty to pay compensation. But where the husband and wife are maritally separated and he still has the duty to support, the commission could find dependency in absence of an affirmative showing that the wife actually abandoned her husband as a potential resource for future contributions. The Industrial Commission could, in this case, have found that she was in fact dependent on her husband at the time he was injured in accord with the expressions of Mr. Justice Thurman contained in McGarry v. IndustrialCommission, supra, part of which was above quoted and in accordance with his expressions contained in the case of UtahApex Mining Co. v. Industrial Commission, 64 Utah 221,228 P. 1078. In addition to the fact that a decree granting the wife $25.00 a month was still extant at the time of the injury, the wife in this case did attempt to collect and those efforts did, in fact, net $225.00. The fact that after repeated attempts to collect arrearages with only partial success, she gave it up as a bad job and chose to earn her maintenance rather than continue the wearisome efforts to make him pay, is not conclusive on the question as to whether she abandoned the right to collect from the potential resource of the husband's earnings. His death took that potentiality from her. Moreover, the fact that she was growing older and reaching the time when she would no longer be able to work would be some basis for a finding that she was dependent at the time of his injury. I do not think that proof of a husband's contributions to his wife are an indispensable element in order to find that she was dependent on him at the time of the fatal injury.
I think the wife's anticipation or expectation would only be material in regard to a determination of whether she had abandoned her husband as a potential resource for any future contributions to her support. The idea that the more a husband neglects his obligations and thus discourages any hope in his wife for a future recognition of his *Page 47 responsibility toward her, the less her chances of proving actual dependency, is not a healthy one.
A wife, not divorced, but armed with a court decree which implies that she is dependent, may rely on that decree as an element in the proof of dependency if such decree is still operative at the time of her husband's death, unless perhaps — and I mean to leave this open — the facts are such as to show definitely an intention to waive her right either by very long efflux of time without any effort to collect or other circumstances which may show a definite intent by the wife to forego the benefits of a decree. There might be a marked and favorable change in her financial condition which coupled with her failure to use any efforts to collect under the decree could be made the basis of a conclusion that she had abandoned the right it gave her as a source of maintenance. But we have no such case here. There is here no acquiescence to his failure to obey the decree or forfeiture of the rights under the same.
The applicant was by decree given the status of a dependent on her husband at least at the time of the decree, and as before stated, there is some basis for an inference that the dependency continued until the injury which resulted in the husband's death.
I am of the opinion that the Commission was misled as to the elements necessary to show the dependency of an estranged wife on her husband at the time of the injury which caused his death. And for this reason, I am of the opinion that the order of the Commission should be set aside and that in order that it have the opportunity to determine in view of the principles expressed herein whether the applicant was dependent upon her husband at the time of his injury and the extent thereof.