360 211 PACIFIC REPORTER individuals. Accordingly an estoppel is not in accordance with Comp. Laws 1917, § 8026, available to sustain a contract of carriage which is reversible error.1 is invalid under the Interstate Commerce Act." Justice Brandeis, in the case of Esteve Bros. Appeal from District Court, Salt Lake Zuro Yamashita was convicted of murder, & Co. declares that the act of 1910 introduced R. B. Thurman, of Salt Lake City, for appellant. Harvey H. Cluff, Atty. Gen., W. Hal. Farr, Asst. Atty. Gen., for the State. "Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. The rate became, not as before a matter of contract by which a legal liability could be modified, but a matter of law by which a uni-victed of murder in the first degree without form liability was imposed." PER CURIAM. The defendant was con a recommendation by the jury, was sen It is conceded that in charging the jury the district court inadvertently omitted to charge them as provided in Comp. Laws Utah 1917, § 8026, which reads as follows: There is no doubt that in the case at bar the plaintiff, in assuming to pay the loss resulting to the defendant from its admitted mistake in the transmission of the message involved, assumed voluntarily an additional "Every person guity of murder in the first liability or obligation forbidden by the statmendation of the jury, may be imprisoned at ute in the interest of uniformity and equal-degree shall suffer death, or, upon the recomity of rates. Hence we are impelled to con- hard labor in the state prison for life, in the clude that the estoppel relied upon by counsel discretion of the court." for the defendant in support of the judgment has no application. The judgment is reversed, and the case is ordered remanded, with directions to the trial court to render judgment in favor of plaintiff for the full amount demanded in its complaint, to wit, $664.28, less the sum of 69 cents, with interest thereon, the cost of the telegram here involved. DUCKER, C. J., and COLEMAN, J., con cur. STATE v. ZURO YAMASHITA. (No. 3818.) (Supreme Court of Utah. Dec. 21, 1922.) Criminal law 797-Failure to instruct jury they may recommend life imprisonment, instead of death, error. Failure to instruct a jury that they may recommend life imprisonment at hard labor, instead of death, for persons convicted of murder, In this It has been held, both by the Supreme Court of the United States (Calton v. People, 130 U. S. 83, 9 Sup. Ct. 435, 32 L. Ed. 870) and by this court (State v. Thorn, 39 Utah, 208, 117 Pac. 58, and State v. Thorn, 41 Utah, 414, 126 Pac. 286, Ann. Cas. 1915D, 90) that a failure to charge the jury that they may recommend imprisonment for life invades a substantial right of the defendant, and constitutes fatal error. case the omission to charge the jury as aforesaid was not discovered until the motion for a new trial filed in the district court had been denied and the case had been appealed to this court. There is therefore no alternative save to reverse the judgment of conviction and to remand the case to the district court of Salt Lake county, with directions to grant the defendant a new trial. Such is the order. 1 State v. Thorn, 39 Utah, 208, 117 Pac. 58; Id, 41 Utah, 414, 126 Pac. 286, Ann. Cas. 1915D, 90. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes INDUSTRIAL COMMISSION et al. v. BIG (Supreme Court of Colorado. Dec. 4, 1922.) The sufficiency of the evidence to support the findings of the Industrial Commission is not the subject of inquiry by the courts. 2. Master and servant 416-Findings of fact in compensation case should conform to equity practice. In order that its findings of fact should be adequate and sufficient, the Industrial Commission in making its findings might well by analogy observe the requirements of a court of equity as to findings of fact. 3. Master and servant 416-General finding best interests require lump sum compensation sufficient. A finding by the Industrial Commission that it is for the best interests of the parties to the proceeding that the application of the injured employee for a lump sum payment be granted for the purpose of purchasing a farm is sufficiently definite. 4. Master and servant 416-Findings In compensation held mere legal conclusions. Findings by the Industrial Commission that employee's life expectancy was sufficient to entitle him to the payment of a total sum as compensation for permanent total disability, and that to produce the lump sum payment of to his interest to re$3,000, which it was ceive, required $5,264.48 to be commuted according to the terms of the Compensation Law were mere statements of legal conclusions and not findings of fact. 5. Master and servant 417(9), Undisputed evidence in compensation case may be treated as findings. Where the evidence before the Industrial Commission is undisputed, the case need not be remanded to the Commission for more detailed findings, though the findings were insufficient, but the evidence can be considered as findings of fact. Lump sum 6. Master and servant 415 compensation may be awarded without formal introduction of mortality tables in evi dence. Assuming that, in awarding a lump sum payment to an injured employee under Workmen's Compensation Act, § 82, which prescribes no method for determining the life expectancy of the employee, the Commission should follow the method prescribed by section 78 of that act, which requires that in determining life expectancy in cases of permanent partial disability the Commission must do so from recognized expectancy tables and such other evidence relating to his expectancy as may be presented, the Commission can consider the mortality tables contained in Rev. St. 1908, §§ 2489, 2490, which those sections prescribe shall be received as evidence, even though there Where there is no showing to the contrary, the courts must presume that the industrial Commission did its duty in determining the life expectancy of an injured employee, and considered not only the mortality tables, but all other matters required by Workmen's Compensation Act, $ 78, in determining his expectancy in awarding lump sum compensation under section 82. 8. Master and servant 417(5)—Employer and compensation insurer, failing to introduce evidence, cannot complain of award. If the compensation insurance carrier and employer thought additional evidence should have been introduced to aid the industrial Commission in determining the life expectancy of an injured employee awarded lump sum compensation, it was their duty to have introduced such evidence, and, if they failed to do so, they cannot have the award set aside because such evidence, if introduced, would have produced a different result. 9. Master and servant 385 (20)-Commission may award monthly payments in addition to lump sum compensation. Under Workmen's Compensation Act, § 82, authorizing the Commission to order payment of all or any part of the compensation awarded in a lump sum or in such manner as it may determine to be for the best interests of all parties concerned, the Commission can award to an injured employee a lump sum payment, and can require the balance of the compensation to be paid monthly to the employee, beginning at once; it not being required that the beginning of the monthly payments should be deferred until the prescribed monthly compensation, if no lump sum were paid, would equal the gross sum commuted into the lump sum. En Banc. Error to District Court, City and County of Denver; Clarence J. Morley, Judge. Proceedings under the Workmen's Compensation Act by Ollie Cruthis, employee, to recover compensation for personal injuries, opposed by the Big Six Coal Company, employer, and the Continental Casualty Company, insurance carrier. An award by the Industrial Commission of part of the employee's compensation for total permanent disability to be paid in a lump sum and the balance in monthly payments was set aside by the district court, and the Industrial Commission and employee bring error. Reversed and remanded, with directions to vacate the order setting aside the award of the Commission and to enter a judgment approving the award. Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for plaintiffs in error. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes L. Ward Bannister, A. H. Laws, and S. M. January, all of Denver, for defendants in error. upon, is wholly insufficient; (3) the commission has no power to require monthly payments in addition to a lump sum award. There are only three grounds upon which the courts may affirm or set aside an award of the Industrial Commission: (1) That it acted without or in excess of its powers; (2) that the finding or award was procured by fraud; (3) that the findings of fact do not support the award. No fraud is claimed, but the award is said to be invalid upon the other two grounds. CAMPBELL, J. This is a writ of error to the district court of the city and county of Denver, to review its final judgment setting aside an award of the State Industrial Commission to Ollie Cruthis, in a case there pending, to recover compensation, under the Workman's Compensation Act of 1919 (Laws 1919, p. 700) for an injury which he sustain[1] Much of the argument of defendants ed in the course of his employment by the Big Six Coal Company, one of the defendants in error, in support of the judgment of the district court and in its attack upon the in error. The Industrial Commission apaward of the Commission, is really directed proved an agreement of the insurance carrier and claimant, whereby he was given to the insufficiency of the evidence to support $10 each week during his disability. Later the Commission's findings of fact. While a hearing was had by the Commission to de- the contention is also urged that such alleged termine the extent of the disability, and findings of fact as were made do not sustain the claimant was found to be totally and the award, greater stress is laid upon the permanently disabled; and, upon such find- lack of evidence. Notwithstanding our preing, he was awarded $10 each week, contin- vous decisions in these compensation cases uing thereafter so long as he should live. that the weight and sufficiency of the evidence are not the subject of inquiry by the More than six months after the injury, proceeding under the permissive provisions of courts, parties persist in asking this court, section 82, the claimant applied to the Com-in its review of these controversies, to sit mission for a lump sum compensation. Upon a hearing of his petition, of which the employer and insurance carrier were notified and in which they participated, the Commission found that it was for the best interests of the parties concerned that the petition be granted, and, accordingly, an award was made of $3,000 in cash, and, in addition thereto, $28.57 each month, to continue as long as the claimant's disability is total and permanent, or until otherwise ordered by the Commission, or until his right to compensation is terminated as provided by law. This final award, after a petition for review had been denied, was brought to the district court as authorized by the statute, and the district as triers of fact. [2] In view of the record before us, we are also constrained to add, what we have declared in other cases, that failure and neglect of the Industrial Commission to make terial facts upon which its award is based, adequate and sufficient findings of all magive rise to unnecessary and prolonged litigation, which, in many of the cases, would be unnecessary if the Commission followed the established practice in this particular. It might well, by analogy, observe the requirements of a court of equity as to findings of fact, and, if it so acted, much of the time of the courts would be saved and much cost and expense of litigants would be avoid ed. court set it aside and remanded the case to not determine, or did not state in its find- In its award of the lump sum here attackthe findings of fact made by the Commission on which such award was made, is in the following language: "It is further found that the claimant has filed an application for a lump sum settlement tract of land in the town of Westminster, for the purpose of purchasing a three-acre Adams county, Colo. That it is for the best interests of the parties hereto that the lump sum application be granted to the applicant for said purpose. That the amount required therefor is $3,000. That the age of the claimant at the time of his accident was 35 years. That his expectancy of life as determined by the Workmen's Compensation Law of Colorado is sufficient to entitle the payment of the total sum of $15,798.90 as compensation under the terms of the above award. That to produce the sum of $3,000 requires that the sum of $5,264.48 be commuted according to the terms of the Workman's Compensation Law of Colorado, and said sum when so commuted equals the sum of $3,000, which is to be paid the (211 P.) claimant in one lump sum. That after said | ment and education, and also the claimant's sum shall be paid, it will reduce the probable expectancy of life. In determining such examount to be paid to the claimant herein to pectancy the Commission must do so "from the sum of $10,534.42. That said last-named recognized expectancy tables and such other sum is used only for the purpose of computing evidence relating to his expectancy as may be the lump sum settlement above referred to, and is not to be construed as a finding as to presented." While we do not so determine, the total amount of compensation that the because it is not necessary, the parties themclaimant herein may be entitled to receive. selves are in accord that, in the absence of That the balance of compensation then to be a specific direction in section 82 to the conpaid to the claimant herein should be paid at trary, the method prescribed by section 78 the rate of $28.57 per calendar month begin- for determining permanent partial disability ning April 15, 1922, and continuing thereafter may be employed, in determining expectancy so long as claimant's disability shall be per- in the hearing of a petition under section 82 manent and total." for the award of a lump sum. [3, 4] The finding as to what is for the best interests of the parties is sufficiently definite. There is no specific finding of the life expectancy of the claimant. On the contrary, the Commission states, as its conclusion, that his expectancy is sufficient to entitle him to the payment of a certain sum of money, and that to produce such sum requires a certain other sum, which, in turn, is to be commuted according to the terms of the Workman's Compensation Law, and that this sum, when commuted equals the amount of the award. It is scarcely necessary to say that such a finding is not a compliance with what the practice demands in such cases. Legal conclusions are not findings of fact. Other criticism might be made as to this alleged finding; but, in view of what we have said, it is not likely that the Commission will regard it as a precedent. [6] Assuming that, in awarding a lump sum, the determination of expectancy may be as prescribed in section 78, we observe, in the first place, that the Commission must determine that fact "from recognized expectancy tables and such other evidence relating to his expectancy as may be presented." The language quoted lends color to the contention of plaintiffs in error that the Commission itself may use any recognized expectancy table, without the necessity of its formal introduction by either party at the hearing. This is so because, if a recognized mortality or expectancy table must be used by the Commission, and neither party introduces it in evidence, the Commission, to discharge its statutory duty, is compelled to resort to a table of that description. No formal evidence, either of a table or any other kind of evidence relating to expectancy, [5] Notwithstanding the fact that the Com- was introduced by either party. It does not mission failed to find specifically as to claim- follow, however, that the Commission did ant's life expectancy, we do not remand the not, and might not, make use of a recognized case for more detailed findings, because there mortality table, nor does it follow that the is no conflict in the evidence, the same being Commission did not take into consideration, undisputed, and we shall consider the evi- and give them due weight, the other matters dence as findings of facts because it is suffi- enumerated in section 78 in making its cient, in our view of the case, to uphold the award. Sections 2489 and 2490, R. S. Coloaward. This practice has been held proper rado 1908, contain a mortality table, and it in similar cases. Prouse v. Industrial Com-is said therein that this table shall be remission, 69 Colo. 382, 194 Pac. 625; Picardi v. Industrial Commission, 70 Colo. 266, 199 Pac. 420. ceived as evidence in ascertaining expectancy, together with other evidence as to health, constitution, habits, and occupation Defendants in error, however, say that, of the person whose expectancy is in issue. not only was no finding of fact made, but The chief reliance by the employer and inthat if the Commission had specifically found surance carrier in their contention that there claimant's life expectancy, there was no evi- was not sufficient evidence of expectancy is dence before it legally sufficient to sustain the fact that there was no formal introducthe finding. Section 82 of the act, which tion of a mortality or expectancy table, and authorizes an award of a lump sum, does that the Commission could not consider such not prescribe a method for determining life table unless it is formally introduced in evi. expectancy of the claimant, which expectancy dence. Bearing in mind that, in gathering both parties say is essential. Neither party evidence, the Industrial Commission has large formally introduced before the Commission discretionary power, and that the expectancy any evidence bearing upon that element of table in our statute is made evidence in our the case. Though section 82 is silent upon courts and before all persons and bodies authe subject, section 78, which relates to per- thorized to receive evidence, and that section manent partial disability, says that in deter- 78 of our Compensation Act expressly remining the same the Commission must take quires the Commission, in determining exinto consideration, among other things, the pectancy in cases of permanent partial disgeneral physical condition of the claimant, ability, to consider, among other things, rechis mental training, ability, former employ-ognized expectancy tables, we are of the opin ion that it may, when determining life expectancy in cases of permanent total disability, in applications for a lump sum award, of its own volition, and without formal introduction by either party, or by itself, make use of the Colorado expectancy table or of other "recognized expectancy tables." [7] The employer and insurance carrier also further contend that it was necessary for the Commission to take into consideration the claimant's physical condition, and the other matters enumerated in section 78. The claimant was before the Commission on different occasions, and evidence was introduced. The Commissioners had ample opportunity to judge of his general physical condition and as to the other enumerated matters, and it was not necessary for the Commission, in the absence of any request therefor at the time of the hearing, to take evidence relating thereto. In the absence of anything in the record to the contrary, we may rightfully assume that the Commission did its duty, and considered not only the Colorado mortality table, but all the other matters which section 78 requires, and gave them due weight in making its award. same was taken into consideration, as were the matters specified in section 78, amply justify its award. [9] Defendants in error have assigned as cross-errors to the judgment of the district court the failure of that tribunal, in accordance with their request, to direct the Commission to withdraw its award of monthly payments after having awarded a lump sum. Their position is that the Commission has no power or authority to award a lump sum compensation, unless and until it orders the suspension of the monthly compensation benefits until such time as the gross amount to be commuted into such lump sum would be realized by the payment of the maximum amount of monthly benefits, if no lump sum had been ordered. This contention, in other words, is that these monthly payments should be eliminated from the award. We do not so believe. Section 82 authorizes the Commission "to order payment of all or any part of the compensation awarded in a lump sum, or in such manner as it may determine to be for the best interests of the parties concerned, and its discretion so exercised shall be final and [8] It is further said that the Commission not subject to review. When payment in a in ascertaining the claimant's expectancy did lump sum is ordered the Commission shall fix not take into consideration the fact that he the amount to be paid based on the present was permanently disabled-and there was at 4% per annum, and less deductions for the I worth of partial payments considering interest evidence that he had tuberculosis of the contingencies of death and remarriage. The chest-but, on the contrary, assumed that aggregate of all lump sums granted to a claimhis expectancy was the same as that of a ant who has been found and declared by the man in normal health. As already indicat- Commission to be permanently and totally dised, in the state of this record, we are justi-abled shall not exceed $3,125.00." fied in assuming that the Commission made due allowances, as the statute requires, for these and all other considerations that had any bearing upon, or related to, the claimant's expectancy; such as that physical infirmities were caused or increased by the injury. If the insurance carrier and employer thought that additional evidence should have been introduced upon this issue, or if they desired further to be heard upon it, they should have made it known to the Commission during the hearing and before its award was made. By reason of their failure in this respect, they are not entitled to have the award set aside for want of evidence which, if produced, they say would have justified a different conclusion. We also add, without entering into detail, that from an inspection of the award, as made, it is apparent that the Colorado expectancy table must have been used. The figures which the Attorney General has set out in his brief, but which need not be reproduced here, satisfy us that this table was used, and properly used, by the Commission. We conclude, therefore, that the undisputed evidence, taken as findings of fact, coupled with our assumption that the Commission had before it the Colorado expectancy table, and that in reaching its conclusion that the Clearly the award is authorized by this section. It may be in part a lump sum, and if the Commission thinks it is for the best interest of the parties, the balance due may be ordered to be paid monthly. The matter is left to the discretion of the Commission, and not subject to review. The employer and insurance carrier, however, say that this discretion is restricted to the determination as to whether it is to the best interests of the parties that a lump sum shall be awarded, and does not extend to the subsequent part of the section, which directs how the amount is to be arrived at, and how and when paid. There is no showing that the subsequent part of the section was not fully observed. If, as admitted by the defendants in error, it is discretionary with the Commission to fix the amount of the lump sum within the maximum, it would seem necessarily to follow that it was also discretionary with the Commission as to the determination of the amount, and the manner of payment of the remainder of the total sum claimant is entitled to. Since the Commission expressly retained jurisdiction so that it might make any necessary change in the future which seemed equitable, and as it had the power to award a part of the total compensation in a lump sum, and the balance |