DocketNumber: No. 5408.
Citation Numbers: 47 P.2d 893, 86 Utah 605
Judges: ELIAS HANSEN, Chief Justice.
Filed Date: 7/23/1935
Status: Precedential
Modified Date: 1/13/2023
Heretofore an opinion by a divided court was rendered in this cause and the order of the Industrial Commission of Utah denying Kate Lulich, the applicant, compensation was set aside and the cause remanded. Lulich v. Industrial Commission et al., 86 U. 590,
There is also evidence that the person killed while in the mine of the Standard Coal Company was not the Joe Lulich who formerly worked at Bingham Canyon. In her deposition the applicant testified that her husband came to America in 1911 and that he never returned. Two witnesses who were called by the applicant testified that they were acquainted with the deceased in the old country; that they saw him on numerous occasions when he was at Bingham; that after coming to this country, prior to his death, the deceased went back to the old country and visited with his family. One of such witnesses stated that this occurred three or four times; the other that it occurred one or more times. Obviously, if the husband of the applicant never returned to the old country and the deceased did return to the old country and there visited his family, the applicant's husband was not the person killed in the mine on the occasion in question.
There are other conflicts in the testimony such as to the year in which the deceased first came to America. The testimony thus indicated as to the age of the man killed and as to his having returned to the old country to visit his family, clearly tends to show that the deceased was not the husband of the applicant. If the commission believed such testimony, as they had the right to do, then the order denying compensation was properly made.
We are all agreed that there is sufficient evidence to support an award, but with our limited powers of review we are of the opinion that the evidence is not such as to demand, as a matter of law, the granting of an award. The findings of fact made by the commission on conflicting evidence are binding on this court. *Page 608
The opinion heretofore rendered in this cause is recalled and the order of the Industrial Commission of Utah denying applicant compensation is affirmed.
FOLLAND, EPHRAIM HANSON, and WOLFE, JJ., concur.