Ogden City v. Industrial Commission of Utah

WEBER, J. The Industrial Commission of Utah, on the application of John Smalley and his wife, Alice Smalley, awarded compensation under the Workmen’s Compensation Act (Laws 1917, c. 100, amended by Laws 1919, e. 63), in the sum of $1,442.50, together with hospital, funeral, and burial expenses, to Alice Smalley against Ogden City for partial dependency based on the death of applicants’ son, Albert G. Smalley. At the date of his death the son was 19 years of age and unmarried. He was a special motorcycle policeman employed by Ogden City. On November 9, 1919, while on duty as such policeman, Albert G. Smalley was injured in a collision between an automobile., and the motorcycle on which he was mounted. He died April 9, 1920, as a result of the collision. Up to the time of his death Albert Smalley lived with his parents and regularly paid his mother $40 per month for his board and room. In addition he paid for the telephone $3 per month, and for ice, from $3.50 to $4 per month, during the summer months of each year. He also bought shoes and wearing apparel for his mother at Christmas and on her birthday, and made other purchases for her and other members of the family. The money paid by Albert for his board and room was used by Mrs. Smalley for her own needs. Plaintiff’s principal contention is that the record contains no evidence to support the award, and that there is no evidence that Mrs. Smalley was partially dependent upon the deceased. Partial dependency is primarily a question of fact. As there was some substantial competent evidence before the commission to justify its conclusion, the award must stand. No procrustean rule can be applied to measure par [223] tial dependency, but tbe question in each instance 1 must be decided according to the facts. The law should be liberally construed in favor of the injured workman and his dependents, and “in case there is any doubt respecting the right to compensation, such doubt should be resolved in favor of the employé or of his dependents as the case may be.” Chandler v. Industrial Com., 55 Utah 213; 184 Pac. 1020. Albert Smalley had made contributions to his mother’s support, and had given her substantial finan cial assistance, paying the telephone and ice bills, and 2, 3 thereby assisting in maintaining the accustomed standard of living of the family. The fact that the mother was not dependent on the son for the necessities of life, which she received from the husband, would not and should not deprive her of compensation if her son rendered material assistance in maintaining her in a condition suited to her station in life. In re Stewart (Ind. App.) 126 N. E. 42. Complaint is made by plaintiff that no credit was given by the commission for payment of salary made to the deceased from the date of his injury to his death. These payments were made wholly as salary, and not as compensation. The award dates from the date of his death, and not 4 from the date of his injury. Therefore, in making an award because of the death, it was proper not to credit Ogden City with any amount that was paid to the injured employé as salary. The award of the commission is therefore affirmed, with costs. ' CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur.