Continental Casualty Co. v. Industrial Commission

The deceased, a citizen of England, for some time prior to 1920, resided in Utah where he was employed. In February of that year he returned to England to get married and then brought his wife with him to Utah, where they had a settled and fixed abode and continuously resided and lived together for more than two years and until his death in June, 1922. He left surviving him his wife, a minor child, and a post-humous child. About three months after his death the wife and minor child returned to England where her parents resided and where she since lived. Thus, while the husband and wife at the time of his death were aliens, still she was not an alien dependent "residing outside" of but within the United States.

Notwithstanding her subsequent change of residence, the insurance carrier voluntarily paid the dependents the maximum rate of compensation, $16 per week, for nearly three years and then refused to make further or additional payments, wherefore these proceedings before the commission were instituted with the result that the carrier was required to continue such payments for the full period of six years or for 312 weeks from the death of the deceased.

Laws of Utah, 1921, c. 67, § 3140, subd. 2, provides that: "If there are wholly dependent persons at the time of the death, the payment shall be 60 per cent of the average weekly wage, but not to exceed a maximum of $16 per week, and to continue for the remainder of the period between the date of the death, and six years after the date of the injury, and not to amount to more than a maximum of $5,000 nor less than a minimum of $2,000;" subdivision 5, that a wife and minor children (under 16 years of age) living with the husband and parent "at the time of his death" are "presumed to be wholly dependent for support upon" him, and that "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," etc.; and, by subdivision 8, that "when any alien dependent of the deceased resides outside of the United States of America or any of its dependencies, or Canada, such dependent shall be paid not to exceed one-half of the amount provided herein."

Thus, when subdivision 8 is considered in connection with the other subdivisions in the same section and relating to the same general subject of "Benefits in case of death," I think it clear that the amount of benefits to be paid is to be determined by the status of the dependents at the time of the death of the employee; and that in such respect a resident alien dependent stands on the same footing with a citizen dependent. If an award be made to a citizen dependent and he or she thereafter and within the period of the award departs from the United States and becomes a resident outside thereof, or of Canada, it is clear that such award or the amount of compensation, to which the dependent is entitled, is no way affected, nor is it to be diminished on any theory that the dependent has gone to reside at some place where the cost of living and maintenance may be less than in the United States. Had the widow here at any time, while she continued to be a resident of the United States and of Utah, applied for an award, it is conceded that she would have been entitled to the same amount of compensation as though she had been a citizen, and that it would have been competent for the commission to have made an award of the maximum rate, as was done, and which voluntarily was paid by the carrier for nearly three years after the death of the deceased. But the contention is that while an award, or the amount to which a citizen dependent is entitled, is not affected by the dependent's subsequent change of residence, that of a resident alien is. But that section deals only with nonresident, not resident, alien dependents. When an award is made to a resident alien dependent it, in my judgment, may not, nor may the amount of compensation to which such a dependent is entitled, be diminished because of the dependent's subsequent change of residence, any more than that of a citizen dependent because of his or her subsequent change of residence. The reason given (the difference between the cost of living in this country and of Europe) for the distinction in the statute awarding to alien dependents residing outside of the United States and of Canada only one-half of the amount of compensation of resident aliens or citizens, is, I think, not well founded. Such circumstance would apply as well to a citizen dependent as to a resident alien and render the amount of the award dependent upon the cost of living. The more apparent reasons are that citizens and resident aliens may become public charges in this country and aliens residing out of the United States not, and for other reasons well recognized where nonresident aliens, in many other particulars, are not put on equal footing with citizens or resident aliens.

Lastly, if the conclusion of the prevailing opinion is correct, that though a resident alien dependent at the time of the death of the deceased and so long as such dependent remains a resident of the United States is entitled to the same compensation as a citizen dependent, but loses such right upon thereafter and during the period of the award residing out of the United States and Canada, then does it follow that if an alien dependent at the time of the death of the deceased resides outside of the United States and Canada, but thereafter and during the period of the award becomes a resident of the United States, such dependent, for the remaining period, is entitled to the same compensation as a citizen dependent? I do not believe the statute intended to accomplish any such result, and yet I do not see how the one may be asserted and the other denied. It is of pecuniary concern to the carrier whether the dependents, at the time of the death of the deceased and prior thereto, were aliens residing out of the United States or whether they were residents of Utah and of the United States and there living with him; but it is of no pecuniary concern of the carrier whether such dependents thereafter, to better and more cheaply support themselves, or for other reasons, reside elsewhere nor, in my judgment, is an award to be made or the amount of compensation determined upon an inquiry of any contemplated change of residence of the dependent pending the period of the award.