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Show 1 19. 1970 THURSDAY. FEBRUARY nc UAI private carrier, executing a release and assignment of his claim. Learning of this, those handling the Fund refused to pay any compensation then or to become due. Hence this litigation. rs The say the Commission erred 1) in allowing the recovthe under because Barrett's recovery from a) meaning of Title ery a a was from his private carrier "third person, " requiring reimburserecovery so ment to the Fund, and that even b) Barrett's release and assignment destroyed the cause of action by the Fund against the third person, which cannot be pursued because of the principle against splitting causes of action. Fund-handle- 35-1-6- 2, As to l)a) above, the answer seems to be that the statute itself does not say what counsel for the Fund says it says. Something would have to be read into it which is not there. This, in spite of counsel for the Fund's contention and citation of authority relating to uninsured motorist coverage and its purpose, 3 - and in spite of its cited authorities, which may infer or assume that a private carrier in an uninsured motorist case is the alter ego of a third party tortfeasor. So far as they so conclude, we cannot agree. It would be rather novel to be able to establish tort liability on the part of some third person who is not even a litigant nor has been sued, simply because a carrier who issues a. policy with an uninsured motorist clause, makes a settlement with its insured, - perhaps on a nuisance value orgqod-wi- ll basis. Tht Fund handler s concede in the bTief that "There is authority that both compensation and workmen's compensation benefits may be received, citing Comm, of State Ins. Fund v. Miller, 4 App. Div. 2d 481, 166 N. V. Supp. 2d 77 (1957- Horne v. Superior Life Ins. Co., 203 Va. 282, 123 5. E. 2d 401 '19b2 They volunteer, however, that the Jones case, supra, footnote 4, is better reason'd. We do not agree and are constrained ro and do approve the Miller and Horne cases they themselves cite, supra, and the language therein contained. They appear to be apropos of our problem here and we commend them to th reader. -- - think that under he language of U.C.A. 1953, .footnote 2, supra, a breadwinner has the right to supplement any benefits to which he may be entitled under the workmen's compensation act, by procuring and paying whatever premium he can squeeze out of his budget for an independent policy with an independent carrier in as large an amount as he can aftord, without giving up any workmen's compensation benefits. Certainly therf is no public policy against protecting him and his family against any added expense over and above such statutory benefits, unless a statute, in clear language, might inderdict .he application oi such foresight and concern about hiB iamily's security after the workmen's compensation benefits long since have been exhausted. We think there is no such negative sanction in the statute here unless we deign to indulge in some kind of unwarranted inclusion by implication, of language said o be, but not actually there. We 35-1-6- 2, 1 We say all this in an atmosphere of the shrinking dollar, absen a cor relative expansion of benef.ts under a perhaps Scroogian legislative dis.ncl. nation to face economic realisms. We say all this, also, in an aura of a sVu quo compensability under existing workmen's compensation acts for one injured worker, that comparably speaking, is quite niggardly and unrealistic with respect to jury verdics awarded to another workman, doing the same work and suffering the same injuries, where his employer, or its carrirr, must respond perhaps tenfold. Which brings us to: Point l)b) above, relating to the release and assignment preventing the Commission to pursue a third party tortfeasor to obtain restitution of compensation paid out of the Fund: In light of what we have said to the effect that Barrett's private insurer is not the alter ego of a tortfeasor, it would seem to follow that the question of splitting a cause of action is not beiore us. So far as the facts of this particular case are concerned, the administrators of the Fund have whatev r rights Ihey had under the statute, irrespective of Barrett s settlement with his own insurer und.r his own contract with it. The numerous authorities cited anent splitting of causes, consequently seem inapplicable here. Perhaps our observations with respect to this phase of the case, bpst might be reflected in Barrett's brief to the effect that: Notwithstanding the language of the release that Barrett shall 'hold in trust for the benefit of the company all rights of recovery which he shall have, ' it cannot be reasonably presumed that a private contract could foreclose rights statutorily granted by the legislature of the state." (Emphasis added.) WE CONCUR LY FACE FOU RECORD HENRIOD, Justice: Appeal from a judgment modifying a divorce decree. no costs awarded. In I960 the parties hereto were divorced. The custody of two mir-osons, then aged about 3 and 1, respectively, was awarded to the defendant mother, subject to right of visitation in plaintiff. Since that time plairtiff has married another woman who had children by a previous marriage and defendant has married another man who brought with him children oi a previous marriage. r The parties to date, have filed about as many petitions against each other as they have children and stepchildren in the aggregate. The charges have been as numerous and as confused. Needless to say the plaintiff has fe may have been something less than a good mother, suggested that his te and defendant as affectionately has ventured the guess that her didn't live right. The exchange of verbal and printed brickbats suggests a case that. is par for the course, with a bit of hatred acting as caddy. ex-wi- ex-ma- The younger boy became 10 and the elder 12, at the time of this most recent skirmish. Through a process of traded accusations, they became 'he victims or beneficiaries of a modified decree. Mother was to have the children for all the school months, and father during all of the summer vacation months. This gave the boys the exciting and adventurous opportunity twice a year to renew their acquaintance with, affection or distaste for a new asscr'.mert of stepbrothers and stepsisters. It also presented father with the oppoTtjr..!v of gathering sufficient candy and condiments to sustain the boys on fishing trips , and picnic safaris and provide a possible release from his stint as stepia'.hc-to say nothing of the mother's enjoyment of an uncomfortable ho, spf 'l w'h the other contingent of stepchildren. From the record, which requires no detailed abstracting here, sir ft it reflects a situation of little more than denial and counter-denia- l, it appears that this is one of those frequent cases where possibly bewildered or frustrated children apparently are employed as human bullets for the ignoble purpose of allowing a couple of irreconcilable matrimonial combatants to pierce cf not only their own souls, but those of their own offspring, - a another possible mutual abhorrence for one another, and of their unwi't.rg and possibly fatuous payment of homage to delinquency. It appears that the father indulged such irreverent fervor in this case by delivering his sons, after keeping them overtime decreewise, for the purpose of serving their mother with the embarrassing ultimatum that they no longer wished to live with her, - all of which, from the record, one might suspect was accomplished in an aura of coached paternalism. She, on the other hand, may have overreached the bounds of maternal filial affection by having her sers taken by-prcd- uct into custody by the police and restrained pending the outcome of the encounter between herself and him whose love apparently had been filched by another member of her sex. Anyway, the judicial referee counted at the knockdowns and declared the bout a sort of Munchausian draw by decreeing, with a despairing wirk of the eye, that albeit both contestants were fit and proper persons to have the custody of the boys, the father was to have full custody of the boys save for a rather miserable 27 hours from 6:00 p. m. on Saturday to 9:00 p. m. on Sunday of each week, - an arrangement that defendant did not like because it subjected the boys to the terrible influence of their father of the time, - and stopped the support money, - and which the father didn't like because it would interfere with his membership in a weekend Isaac Walton Association. six-seven- Three other people, not the litigants here, took the real beating in this case, - the two boys and the harassed judge in his alleged robed and wise unwisdom. We believe the trial court, on what he had before him, proved to be a competent physician in attempting to heal the marital malignancy extant here, and that the believable evidence justified and supported both his amputations and plastic surgery. : Chipf Justice E. R. Callister, Jr., Juttce R. L. Tuckett, Justice Title A. H. Ellett, Justice as amended, laws of Utah, Ch.59, Sec. 1, L. Utah 1967, (1969 Pocket Supp. Vol. 5, p. 131) provides that at the election of a purchaser, policies must cover compensable damage caused by an uninsured motorist. Although referred to in the briefs, the legislation is not a controlling factor under the circumstances of this case. 2. "When any injury . . . for which compensation is payable . . , shall have been caused by the wrongful act of another person the injured employee . . . may claim compensation and . . . may also have an action for damages against such third person. " and if the carrier becomes obligated to pay compensation, the carrier shall become trustee of the cause of action against the third person and may bring . , . the action either in its own name or in thename of the injured employee . . . . " 3. 79 A. L.R. 2d 1252. 4. Peterson v. State Farm Ins. Co., 238 Or. 106, 393 P. 2d 651 (1964), which involves a different and impertinent uninsured motorist approach involving the scope of an insurance commissioner's authority; Jones v. Morrison, U.S.D. Ct. Ark,, 284 F. Supp. 1016 (1968), which is a case where the employee sued the tortfeasor , requiring a statutory divisional recovery, - not a case, as here, where the employee did not sue the third person, but simply settled an independent claim with a private insurer. 41-12-- 21. 1, ... ... In The Supreme Court Of The State Of Utah Clair R. Rogers, Plaintiff and Respondent, v. No. 11875 FILED Francis J. Rogers Andrews, Defendant and Appellant. February 17, 1970 L. M. Cummings, Clerk cross-appe- al WE CONCUR: R. L. Tuckett, 1. ths Because of the displeasure of both the parties arising out of the modified decree entered by the court, both appealed. The father's pleadings and brief attributed to the tual court the wisdom of Solomon in switching custody to him, but gave the same judge a rather nominal I. Q. rating when he broke up the picnics and fishing trips. The trial court's judgment is affirmed and plaintiff's adjudged to be without merit. J. Allan Crockett, Affirmed, w.: Justice A. H. Ellett, Justice CROCKETT, Chief Justice: (Concurring) concur with the decision in refusing to interfere with the order of court. As is reiterated so often, due to his advantaged position and prerogatives, he is ana should be allowed considerable latitude of discretion in such matters. Nevertheless, in view of the complaint about the rigidity of the order, I think it not amiss to make these comments: It gives custody of the boys to the father every weekday, and to the mother part of every weekend. The father argues that this breaking into every weekend will always prevent the planning of weekend recreational activities. If applied in absolute rigidity it will also at times adversely affect plans of the mother. The answer to this dilemma perhaps could be found by these parties committing themselves to the idea that the paramount objective should be the welfare and character building of their sons; and that this requires the highest possible degree of love and guidance from both parents in a mature and reasonable way. I the trial It is to be hoped that after passions have subsided, and upon mature reflection, the parties can themselves, or through the intermediary of these boys, now emerging into manhood, arrange at such times as is necessary and desirable an adjustment and tolerance of each other's plans by the trading of custody time, and thus create a much happier situation and have a number of beneficial aspects for all concerned. The trial judge probably had in mind such possibility in fashioning the decree in generality as he did. He appears to have done a commendable job in dealing with one of the most perplexing situations the courts have to deal with: the arrangement of the custody of children between divorced parents who in fact love their children but where there is an atmosphere laden with tensions because rivalry and emotions play too large a part in their contending for custody. Callister, J. , concurs in the result. t |