Gallegos v. Homestake Min. Co.

• Decision Date: 16 March 1982
• Docket Number: No. 5389,5389
• Citation: 643 P.2d 281,97 N.M. 717,1982 NMCA 52
• Parties: Orlando GALLEGOS and Evangeline Gallegos, Parents of Earl Gallegos, Deceased, Plaintiffs-Appellants, v. HOMESTAKE MINING COMPANY, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 281

643 P.2d 281

97 N.M. 717

Orlando GALLEGOS and Evangeline Gallegos, Parents of Earl Gallegos, Deceased, Plaintiffs-Appellants, v. HOMESTAKE MINING COMPANY, Defendant-Appellee.

No. 5389.

Court of Appeals of New Mexico.

March 16, 1982.

Claudia F. Ingram, Luebben, Hughes & Kelly, Albuquerque, for plaintiffs-appellants.

Walter K. Martinez, Gary Fernandez, Grants, for defendant-appellee.

OPINION

DONNELLY, Judge.

This is an appeal by the parents of a deceased workman from a final judgment denying their claim for survivor's benefits under the Workmen's Compensation Act. We affirm.

Plaintiffs Orlando and Evangeline Gallegos, as surviving parents, filed a complaint seeking workmen's compensation benefits as a result of the death of their son Earl Gallegos. Prior to trial, the parties stipulated to the following salient facts: Earl Gallegos was employed by defendant Homestake Mining Company (Homestake) as a miner; that on December 22, 1980, during his underground work-shift, blasting was conducted within the mine and as a result of an explosion, his working area was filled with nitrous fumes which he inhaled; that Earl Gallegos died on December 24, 1980 as a result of inhaling toxic fumes; that at the time of his death, decedent was working in the course and scope of his employment; and at the time of decedent's accident, he was earning an amount which would qualify him for maximum benefits under the New Mexico Workman's Compensation Act. Decedent was unmarried and had no surviving children.

We are asked to decide two issues: (1) Did the trial court err in disregarding evidence that plaintiffs were partially dependent upon their son; and (2) Is the limitation on the total amount of recovery by dependent parents as set forth in § 52-1-46(D), N.M.S.A. 1978, unconstitutional?

1) Issue of Dependency :

The sole disputed issue of fact tried to the district court was whether plaintiffs, as surviving parents, were financially dependent to any extent on their son, within the meaning of § 52-1-46(D), N.M.S.A. 1978.

Plaintiffs challenged each of the following findings adopted by the trial court: (1) plaintiffs failed to carry the burden of proof that their son contributed any amount to their support; (2) plaintiffs were not dependent to any extent upon their deceased son; (3) plaintiffs did not prove that their son contributed an amount exceeding the benefits accruing to him by virtue of residing with plaintiffs; (4) that defendant has paid all sums to plaintiffs to which they are entitled; and (5) that all inconsistent findings with those adopted by the court should be denied.

The Workmen's Compensation Act, § 52-1-46, N.M.S.A. 1978, provides in applicable part:

Subject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a workman proximately results in his death within the period of two years following his accidental injury, compensation shall be paid in the amount and to the persons entitled thereto, as follows:

D. If there be neither widow or 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-five percent of the average weekly wage of the deceased, 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 fifty percent of the average weekly wage of the deceased; * * * * (Emphasis supplied).

Whether partial dependency under the Workmen's Compensation Act exists is a question of fact to be decided in each case and to be proven under the evidence. Ferris v. Thomas Drilling Co., 62 N.M. 283, 309 P.2d 225 (1957); Lopez v. Schultz & Lindsay, 79 N.M. 485, 444 P.2d 996 (Ct.App.), cert. denied, 79 N.M. 448, 444 P.2d 775 (1968); Wilson v. Mason, 78 N.M. 27, 426 P.2d 789 (Ct.App.1967); see Sallee v. Calhoun, 46 N.M. 468, 131 P.2d 276 (1942); Barney Cockburn & Sons v. Lane, 45 N.M. 542, 119 P.2d 104 (1941).

Parents are not presumed to be dependents of their children, and such claimants asserting the status of dependency have the burden of proving it. Parke County Rural Electric Membership Corp. v. Goodin, 112 Ind.App. 216, 44 N.E.2d 198 (1942). Determination of dependency turns upon whether the deceased workman had actually contributed to his parents' support and whether his parents relied upon such contributions in whole or in part for their livelihood. Barney Cockburn & Sons v. Lane, supra; Ferris v. Thomas Drilling Co., supra; Wilson v. Mason, supra. Whether dependency is total or partial must be determined from the needs of the claimants and the absence of some other substantial source of necessary support. Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903 (1924); Wilson v. Mason, 78 N.M. 27, 426 P.2d 789 (Ct.App.1967). In Myers v. Pacific Greyhound Lines, 134 F.2d 457 (10th Cir. 1943), interpreting a New Mexico wrongful death statute authorizing suits by a decedent's dependents, the court discussed the test for partial dependency and quoted Gonzales v. Chino Copper Co., supra, a Workmen's Compensation Act case:

"Dependency does not necessarily depend upon whether or not the claimants could support themselves without the earnings of the deceased or whether they could have so reduced their living expenses that they could have been supported independent of such earnings. To the contrary, it depends upon whether or not the deceased had actually contributed to their support and whether or not they relied upon such earnings in whole or in part for their livelihood."

Mrs. Gallegos testified that her deceased son contributed $130.00 to his parents every two weeks; that the funds contributed were utilized by the parents for a trailer payment, insurance payments, pharmacy bills, and clothing. She also testified that her son's contributions to his parents were also applied to a monthly savings account which they intended to utilize to pre-pay their trailer and to use toward the educational expenses of their youngest son, that her son's financial contributions to his parents exceed the actual cost of his room and board and that the parents relied upon such contributions to meet their expenses and establish a savings account.

Appellants assert that Mrs. Gallegos' testimony on all of these points is uncontroverted; that the trial court erred in not determining that the parents had established partial dependency within the meaning of the Workmen's Compensation Act. In assessing appellants' contention, we examined the record to determine if any substantial evidence exists that appellants failed to carry the burden of proof.

As observed in Cave v. Cave, 81 N.M. 797, 474 P.2d 480 (1970), the pole star governing our review of the court's findings is that, if supported by substantial evidence, findings of fact may not be challenged as to their accuracy. Where evidence is conflicting, any disputed fact is resolved in favor of appellee and evidence is viewed in the aspect most favorable to the successful party. It is the function and prerogative of the trial judge in non-jury cases to determine the credibility and weight to be given to the testimony of witnesses and the evidence. In examining the evidence, an appellate court will not disturb findings, weigh evidence, resolve conflicts, or substitute its judgment as to the credibility of witnesses where evidence substantially supports the findings. All reasonable inferences are indulged in to support the findings made. Evidence and inferences to the contrary are to be disregarded. "Substantial evidence" has been defined to mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See also Southern Union Exploration Co. v. Wynn Exploration Co., 95 N.M. 594, 624 P.2d 536 (Ct.App.), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981); Den-Gar Enterprises v. Romero, 94 N.M. 425, 611 P.2d 1119 (Ct.App.), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980).

Decedent's mother testified that her son earned a salary of $19,814.93 per year, and that his W-2 tax reporting form indicated only himself as dependent. During defendant's case-in-chief, defendant presented the testimony of Roy Souther, safety director of decedent's employer. This witness further testified as follows:

Q: Are you familiar with his (decedent's) personnel records?

A: Yes.

Q: In those records was he required to sign any kind of a form to indicate whether he had dependents or not?

A: On the forms that he filled out he was asked if he had any dependents which he did not list any at all.

Q: Is there anything in his records or file that indicates that he has any dependents?

A: Nothing whatsoever.

The above testimony was received without objection and constituted evidence of decedent's state of mind concerning his intention in making financial payments to his parents. As stated in Barney Cockburn & Sons v. Lane, supra, declarations and previous acts of a decedent are admissible to show the deceased's state of mind as to whether he intended financial contributions to constitute support. In light of the testimony of both Mrs. Gallegos concerning her son's declarations for tax purposes, and the related testimony of Mr. Souther, the record contains testimony supportive of the trial court's findings.

Mrs. Gallegos' testimony also revealed that, at the time of her son's death, her husband was earning approximately $27,000.00 a year, or a gross of $2,340.00 per month, and that she was employed, earning $150.00 every two weeks, and had a gross income for 1980 of $7,000.00.

She also testified that her son's contributions to them of $130.00 every two weeks exceeded the amount of his monthly living...