Ferris v. Thomas Drilling Co.

• Decision Date: 28 March 1957
• Docket Number: No. 6153,6153
• Parties: W. G. FERRIS and Laura Ferris, as dependent parents of Billy Max Ferris, Deceased, Plaintiffs-Appellees, v. THOMAS DRILLING COMPANY, a corporation Employer, and United States Fidelity and Guaranty Company, a corporation, Insurer, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 225

309 P.2d 225

62 N.M. 283

W. G. FERRIS and Laura Ferris, as dependent parents of Billy Max Ferris, Deceased, Plaintiffs-Appellees, v. THOMAS DRILLING COMPANY, a corporation Employer, and United States Fidelity and Guaranty Company, a corporation, Insurer, Defendants-Appellants.

No. 6153.

Supreme Court of New Mexico.

March 28, 1957.

Cowan & Leach, Hobbs, for appellants.

Neal, Neumann & Neal, Carlsbad, for appellees.

LUJAN, Chief Justice.

Billy Max Ferris died from an accident arising out of and in the course of his employment by appellant-employer. He was then aged twenty years, and was living with his father and mother, appellees herein. The sole question in this appeal concerns the status of appellees as actual partial dependents of decedent at the time of his death.

Section 59-10-12 provides as follows:

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

* * *

* * *

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

Section 59-10-18 provides:

'* * * 7. If there be neither widow, widower, nor children, then to the father and mother, or the survivor of them if dependent to any extent upon the workman for support at the time of his death, * * *'

It was stipulated at the trial that the appellant, Thomas Drilling Company, is a corporation, and at all times material was engaged in the business of drilling oil wells in New Mexico; that United States Fidelity & Guaranty Company was its insurer under the Workmen's Compensation Act; that on August 20, 1955, Billy Max Ferris was employed by Thomas Drilling Company as a derrick man, and on that date received an injury arising out of his employment from which he died in a few days; that all hospital and medical expenses incident to his hospitalization and prior to his death were paid by the insurance company; that the sum of $250 for burial expenses was tendered by the insurance company but was refused prior to filing this suit; that the deceased at the time of his death was earning an average weekly earning of $106.40 a week; that he was unmarried and died without issue; and that the only question for determination is the dependency.

The record discloses that between September 1, 1953 and July 21, 1955, the following sums of money, earned by the deceased, were deposited in the Carlsbad National Bank of Carlsbad, New Mexico, in the joint names of deceased and his mother.

                September   1, 1953  --  $700.00
                July       20, 1954  --   280.88
                August      8, 1954  --   300.00
                August     16, 1954  --   265.00
                July       12, 1955  --   212.33
                July       21, 1955  --   168.61  Total $1926.82
                

The following sums of money were deposited in said account, which was supplied by the father, mother and older brother, by his mother.

                October    10, 1953  --    $ 75.00
                October    27, 1953  --      35.00
                November    9, 1953  --      50.00
                December    8, 1953  --      30.00
                March      23, 1954  --      75.00
                April       8, 1954  --     100.00
                April      12, 1954  --      35.00
                April      19, 1954  --       5.00
                April      26, 1954  --      25.00
                May        10, 1954  --     140.00
                May        17, 1954  --       5.00
                May        24, 1954  --      30.00
                May        25, 1954  --      15.00
                June        4, 1954  --      20.00
                June       26, 1954  --      20.00
                July        6, 1954  --      30.00
                July        6, 1954  --      51.44
                September  15, 1954  --      60.00
                December   23, 1954  --      15.00
                January    10, 1955  --     130.00  Total $946.44
                                                         --------
                                             Grand Total $2873.26
                

The mother of decedent transferred, on September 9, 1955, the sum of $289.24 from the joint account to her separate account, thus leaving the total amount contributed by the father, mother and older brother to $657.20 as against $1,926.82 contributed by the deceased.

Against this account there was drawn by the deceased and his mother the sum of $725.91, for rent, groceries, light, clothing and other family expenses. The rest of the money was used by the deceased to pay for his schooling and expenses incidental thereto, and his clothing.

The appellants contend that the court erred in (1) denying its motion to instruct the jury to return a verdict in their favor at the close of the evidence; (2) in submitting the issues of dependency to the jury when in view of the undisputed evidence the question of partial dependency was one of law; and (3) that there is insufficient evidence within the record to support the findings by the jury that the plaintiffs' parents were actually partially dependent upon the deceased at the time of his death under the provisions of the Workmen's Compensation Act of New Mexico.

A determination of appellants' contention that the trial court committed error in denying their motion for a directed verdict will also dispose of the third ground of error, which is that there is insufficient evidence in the record to support the findings by the jury that appellees were actually partially dependent upon the deceased at the time of his death.

In consideration of motion for directed verdict the court must view evidence of plaintiff in most favorable aspect, indulging all reasonable inferences to be drawn from plaintiff's evidence, and disregarding all unfavorable testimony and inferences. Smith v. Ferguson Trucking Co., 58 N.M. 779, 276 P.2d 911. And, only where there is no evidence for jury to pass upon or where evidence is of such character that the court, in exercise of its sound judicial discretion, would be called upon to set aside verdict and grant a new trial if jury found in favor of one side rather than the other, is it right and duty of trial court to direct jury to find according to view of the court. The appellants having denied that appellees, at the time of their son's death, were partially dependent upon him for support, in view of the evidence introduced, the question of dependency was properly submitted to the jury. Sanchez v. Gomez, 57 N.M. 383, 259 P.2d 346.

Mrs. Laura Ferris, mother of decedent, testified that her son turned all of his earnings to her and that she put the money on deposit in the Carlsbad National Bank; that she and her son drew checks on the account; that she made deposits to the account from funds of herself, husband and older brother while her son was in college; that part of the money so deposited went for his education, and that when she needed some money for family expenses she would use it; that she drew checks to pay rent, groceries, clothing, lights and other family expenses; that her son drew checks to pay family bills; that she relied upon receiving his checks to deposit in the bank for his education and family purposes; and that she depended upon him, during the time he was working, and at the time of his death, to help the family out.

W. G. Ferris, father of decedent, testified that he was actually partially dependent upon his son to a certain extent; that he had been off of work quite a bit because he had been sick for the last four years, and that he was off at the time of the trial, but was working at the time of his son's death; that he was earning $4,800 per year. The record further disclosed that the father's bank account was meager.

John Pena, an auditor at the Carlsbad National Bank testified, that the bank account of W. G. Ferris was quite insufficient, it was very low; that from ...