Employers Mut. Liability Ins. Co. of Wisconsin v. Jarde

• Decision Date: 09 December 1963
• Docket Number: No. 7282,7282
• Citation: 1963 NMSC 215,73 N.M. 371,388 P.2d 382
• Parties: EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Plaintiff-Counter-Defendant, Appellant-Cross-Appellee, v. Dolle JARDE , Lucy B. Willman, Donna Mae Willman, and Carol Jean Willman, Defendants-Counterclaimants, Appellees-Cross-Appellants.
• Court: New Mexico Supreme Court

Page 382

388 P.2d 382

73 N.M. 371

EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN Plaintiff-Counter-Defendant Appellant-Cross-Appellee, v. Dolle JARDE [Jared], Lucy B. Willman, Donna Mae Willman, and Carol Jean Willman, Defendants-Counterclaimants Appellees-Cross-Appellants.

No. 7282.

Supreme Court of New Mexico.

Dec. 9, 1963.

Rehearing Denied Jan. 29, 1964.

Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Joseph J. Mullins, Albuquerque, for appellant.

Smith, Kiker & Ransom, Albuquerque, for appellees.

CHAVEZ, Justice.

Appellant brought an interpleader action alleging that it was the workmen's compensation insurer for Robert L. Grossman, d/b/a Grossman Drilling Company, and that one J. C. Willman was employed by said Grossman at the time he suffered an accident arising out of and in the course of his employment, which accident was the cause of Willman's death.

The complaint further alleged that, at the time of his death, Willman was divorced and that his children, Carol Jean and Donna Mae Willman, were in the custody of his former wife, Lucy B. Willman, and claimed that they are entitled to workmen's compensation benefits; that the deceased left surviving him his mother, Dollie Jared, and that she also is claiming that she is entitled to workmen's compensation benefits.

The complaint then states that appellant is in great doubt as to who is entitled to the compensation benefits on account of Willman's death, and requests that appellees be decreed to interplead and settle among themselves their claims to the compensation benefits due under the policy and deposited in the registry of the court.

The trial court entered an order appointing appellee, Lucy B. Willman, as guardian ad litem for the minor appellees, Carol Jean and Donna Mae Willman.

Answer was filed by appellees, denying that any one or more of them claim to be the sole beneficiary or beneficiaries entitled to compensation, and further alleging that the claims of Dollie Jared and Donna Mae Willman are not conflicting. Appellee, Carol Jean Willman, denied that she is claiming to be entitled to compensation. A counterclaim was also filed on behalf of Donna Mae Willman and Dollie Jared. Donna Mae Willman alleged that she is the natural child of deceased, under eighteen years of age. Dollie Jared alleged that she was the mother of the deceased and totally dependent upon him.

Appellant filed a reply to the counterclaim, reciting the previous payment of $1000 into the registry of the court and that subsequently an additional sum of $148 was paid into court.

Thereafter, appellees propounded interrogatories to appellant and appellant answered the same; likewise, stipulations were entered into between the parties.

The trial court made its findings of fact and conclusions of law and judgment was entered ordering payment to Donna Mae Willman in the sum of $31.36 per week from December 21, 1961, until she reached the age of 18 years or became self-supporting; ordering compensation payment to Dollie Jared in the sum of $166, representing compensation benefits at the rate of $6.64 per week for a period of 25 weeks from December 21, 1961, through June 14, 1962, and further that Dollie Jared was to recover compensation benefits at the rate of $6.64 per week, paid twice a month, from and after June 14, 1962, the same to continue for the period during which compensation benefits are paid to Donna Mae Willman; and upon termination of compensation payments to Donna Mae Willman, Dollie Jared to recover compensation benefits of $38 per week until such time as she had been paid maximum compensation in the sum of $5000.

Attorney's fees for appellees' counsel were set at $2000 and appellant was ordered to pay attorney's fees of $750 on behalf of Donna Mae Willman and $500 on behalf of Dollie Jared, the balance of the $2000 to be paid by appellees.

Appellant appeals from that part of the judgment decreeing recovery for Dollie Jared and from the trial court's order to pay attorney's fees. Appellees cross-appeal from that part of the judgment ordering them to pay $750 of the $2000 awarded as attorney's fees.

This appeal raises two issues to be decided by the court. The first issue, and a question of first impression in this state, is whether an award under the Workmen's Compensation Act in favor of a minor dependent child of the deceased will preclude a concurrent award in favor of the deceased's dependent mother, both awards not exceeding the statutory limit of $38 per week. The second issue is whether attorney's fees for claimants' counsel may be apportioned between the claimants and the employer.

The question of concurrent death benefit payments to dependents under a Workmen's Compensation Act is usually dependent upon the wording of the statutes of the jurisdiction, 99 C.J.S., Workmen's Compensation, Sec. 135, p. 458, and any consequent case law cited as authority must depend upon the wording of the statute to be persuasive. Appellees rely strongly upon the case of Patin v. T. L. James & Co., 218 La. 949, 51 So.2d 586, to support their position for proper awards of concurrent benefits. However, there the court interpreted specific language in the statute, not present in our law, to----

'distinguish between those persons wholly dependent and those partially dependent, compensating the former according to the schedule contained in sub-section (E) and providing benefits for the latter on the basis of the discussed formula and only after those wholly dependent have received their specified portions.'

Appellant strongly contends that the case of United Employers Casualty Co. v. Duncan, (Tex.Civ.App.1941), 151 S.W.2d 354, stands for the contra proposition that concurrent awards are not proper. However, under the Texas statutes and the interpretation of those statutes, such a death award is to be distributed under the statutes of descent and distribution, and before an award to a surviving brother can be upheld, the absence of a surviving wife or child must be pleaded and proved. Such a statute is clearly distinguishable from the New Mexico statute regarding the question of who shall receive the death benefits.

The pertinent provisions of the Workmen's Compensation Act governing death benefits, priorities, and sharing among multiple dependents, are set out in Sec. 59-10-12(j), N.M.S.A., 1953 Comp., as follows:

'(j) The following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of this act.

'1. A child under eighteen years of age or incapable of self-support and unmarried, actually dependent upon the deceased.

'* * * '4. A parent or grandparent only if actually dependent, wholly or partially, upon the deceased.

'* * *

'The relation of dependency must exist at the time of the injury.

'6. Questions as to who constitute dependents, and the extent of their dependency, shall be determined as of the date of the injury, and their right to any death benefit shall cease upon the happening of any one of the following contingencies:

'I. Upon the marriage of the widow or widower.

'II. Upon a child reaching the age of eighteen years, unless said child at such time is physically or mentally incapacitated from earnings, or upon a dependent child becoming self-supporting prior to attaining said age.

'III. Upon the death of any dependent.'

Section 59-10-18.7, N.M.S.A., 1953 Comp., provides in part as follows:

'59-10-18.7. Compensation benefits for death.--Subject to the limitation of compensation payable under subparagraph G of this section, if an accidental injury sustained by a workman proximately results in his death within the period of one year following his accidental injury, compensation shall be paid in the amounts and to the persons entitled thereto, as follows:

'* * *

'C. If there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, subject to the maximum limitation of thirty-eight dollars ($38.00) a week, as the court, bearing in mind the necessities of the case and the best interests of the dependents and of the public may determine, to be computed and distributed as follows:

'(1) To the child or children, if there be no widow or widower entitled to compensation, twenty-five per cent [25%] of the earnings of the deceased, with ten per cent [10%] additional for each child in excess of two ;

'(2) To the widow or widower, if there be no children, forty per cent [40%] of earnings;

'(3) To the widow or widower, if there be one child, forty-five per cent [45%] of earnings;

'(4) To the widow or widower, if there be two children, fifty per cent [50%] of earnings;

'(5) To the widow or widower, if there be three children, fifty-five per cent [55%] of earnings;

'(6) To the widow or widower, if there be four or more children, sixty per cent [60%] of earnings.

'D. If there be neither widow, widower, nor children, compensation may be paid to the father and mother or the survivor of them, if dependent to any extent upon the workman for support at the time of the workman's death, twenty per cent [20%] of earnings, but not more than fourteen dollars ($14.00) a week, and in no event shall the maximum compensation to such dependents exceed the amounts contributed by the deceased workman for their care; Provided, that if the father and mother or the survivor of them shall have been totally dependent upon such workman for support at the time of the workman's death, he, she, or they shall be entitled to forty per cent [40%] of earnings.

'E. If there be neither widow, widower, nor children, nor dependent parent, then to the brothers and sisters, if actually dependent to any extent upon the deceased workman for support at the time of the workman's death, twenty-five per cent [25%] of earnings of the deceased workman with ten per cent [10%] additional for...