Aetna Cas. & Sur. Co. v. Cassavaugh

• Court: Texas Civil Court of Appeals
• Writing for the Court: TUNKS
• Citation: Aetna Cas. & Sur. Co. v. Cassavaugh, 486 S.W.2d 815 (Tex. Ct. App. 1972)
• Decision Date: 25 October 1972
• Docket Number: No. 676,676
• Petition History: writ ref'd n.r.e.
• Parties: The AETNA CASUALTY & SURETY COMPANY, Appellant, v. Janice Diane CASSAVAUGH, Appellee. (14th Dist.)

Page 815

486 S.W.2d 815

The AETNA CASUALTY & SURETY COMPANY, Appellant, v. Janice Diane CASSAVAUGH, Appellee.

No. 676.

Court of Civil Appeals of Texas Houston (14th Dist.).

Oct. 25, 1972.

Rehearing Denied Nov. 15, 1972.

Thomas P. Sartwelle, Barry N. Beck, Fulbright, Crooker & Jaworski, Houston, for appellant.

David H. Burrow, George E. Pletcher, Helm, Jones & Pletcher, Houston, for appellee.

TUNKS, Chief Justice.

This is a workmen's Compensation death case. The claimant in the trial court was Mrs. Janice Diane Cassavaugh, adult daughter of the deceased William Andrew Stoddard. She will sometimes be referred to herein as the claimant. The only issue of fact presented by the evidence in the trial court was the question of the claimant's dependency upon her father at the time of his death. All other elements of her cause of action were uncontroverted. In answer to the one special issue submitted the jury found that the daughter was dependent upon her father for support. The trial court rendered judgment for the claimant upon such verdict and uncontroverted facts. The insurance carrier appeals.

The first three of appellant's points of error challenge the evidentiary support for the jury's finding upon the no evidence, factually insufficient evidence and against the weight of the evidence bases. Those points of error are overruled.

The claimant's parents were divorced when she was about a year old. She maintained some contact with her father until she was about 13 years old. From that time until about a year before the trial neither she nor her father knew where the other was. The daughter married in 1962, had a son born in 1963 and was divorced in 1965. The decree by which she was divorced did not require her son's father to pay any child support and he had not voluntarily paid any such support. About a year or eighteen months before her father's death, which occurred on September 10, 1969, claimant located her father in Louisiana. From that time the two had maintained correspondence.

Some months before his death claimant's father had moved to Houston where he was employed as a night attendant in a filling station. He earned $120 a week. His death resulted from injuries he received in a robbery of the station at which he worked.

Before her father's death the claimant lived in California where she worked as a secretary for some real estate appraisers. During the summer of 1969 her father began sending her money. He sent her fifty to seventy dollars--ten to twenty dollars at a time. He wrote to her asking her to come to Houston. She agreed to do so and he sent her $200 with which to pay her fare. She came in August and stayed a week. Her father paid her motel bill while she was here. At her father's request she made application for employment in Houston and was so employed at a salary of $500 a month as a secretary. While she was in Houston her father gave her $30 in cash and paid a $50 deposit on her apartment into which she arranged to move. She returned to California on August 23, 1969, gave notice to her employers there and began preparations to move to Houston. While there her father sent her $10 as a birthday gift. She had not yet moved to Houston at the time of her father's death, but had relinquished her job in California, had accepted employment in Houston and did move after her father's death.

During the five or six months before his death the father had spent about $350 on his daughter. It is true that a large part of that amount was for expenses in coming to Houston. That trip, however, was not purely for pleasure. At least one purpose, if not the dominant purpose, in the claimant's coming to Houston was to seek and obtain employment, which she did. It is not necessary that an adult daughter be totally dependent upon her father to qualify as a beneficiary under Vernon's Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 8a (1923). It is sufficient if she is partially dependent for support even though she could have subsisted without his contributions. Postal Mut. Indemnity Co. v. Penn, 165 S.W.2d 495 (Tex.Civ.App.-Amarillo 1942, writ ref'd w.o.m.). There is evidence here showing such partial dependency and the jury's finding of it is not so against the weight of the evidence as to require reveral.

The special issue submitted by the trial court was:

'SPECIAL ISSUE NO. 1

Do you find from a preponderance of the evidence that at the time of the death of William Andrew Stoddard, Diane Cassavaugh was dependent for support, in whole or in part, on William Andrew Stoddard for any contributions, services, or other things of value she was receiving from him?

Answer 'We do' or 'We do not'.

The jury answered 'We do.' No special instruction relating to such issue was given.

The insurance carrier objected to the special issue for the reason that its language would permit an affirmative answer even if the daughter expected and received only 'insignificant, minor contributions', whereas, under the workmen's compensation law she was not a beneficiary unless she depended upon 'substantial' contributions from her father. The carrier also requested a special issue to be given instead of that given by the court, which requested issue was accompanied by a special definition of 'dependent' that included the element of substantiality. The carrier's objection to the charge was overruled and the requested issue and definition were refused. Such action is assigned as error.

In Traders & General Ins. Co. v. Stanaland, 189 S.W.2d 55 (Tex.Civ.App.-Texarkana 1945, aff'd 145 Tex. 105, 195 S.W.2d 118) a sister of a deceased employee claimed to be a workmen's compensation beneficiary because of her dependency on the employee. There was uncorroborated testimony by the claimant that for a period of about 18 months before his death the employee had given her $15 to $18 a month, along with smaller contributions during an earlier period. The trial court submitted a dependency issue and definition that did not include the element of substantiality of the contributions depended upon. The carrier objected and requested a charge including such element. The record showed that the claimant's attorney had argued to the jury that under the charge given it should find dependency if the deceased employee had contributed only a dollar a month or 10 cents a week. The Court of Civil Appeals reversed the trial court's judgment for the claimant saying at page 58:

...