Industrial Acc. Bd. v. Lance

• Court: Texas Civil Court of Appeals
• Writing for the Court: ROBINSON
• Citation: Industrial Acc. Bd. v. Lance, 556 S.W.2d 101 (Tex. Ct. App. 1977)
• Decision Date: 29 August 1977
• Docket Number: No. 8750,8750
• Parties: INDUSTRIAL ACCIDENT BOARD, Second Injury Trust Fund and State of Texas, Appellants, v. Mary Zerne (Gafford) LANCE et al., Appellees.

Page 101

556 S.W.2d 101

INDUSTRIAL ACCIDENT BOARD, Second Injury Trust Fund and State of Texas, Appellants, v. Mary Zerne (Gafford) LANCE et al., Appellees.

No. 8750.

Court of Civil Appeals of Texas, Amarillo.

Aug. 29, 1977.

John L. Hill, Atty. Gen., Jimmy R. Weaver, Asst. Atty. Gen., Austin, for appellants.

Michael D. Schattman, Jacobs & Taylor (Kelly Jacobs), Fort Worth, for appellees.

ROBINSON, Justice.

In this workmen's compensation suit, the trial court, sitting without a jury, found that plaintiffs, Mrs. Woodward and Mrs. Lance, were dependent children of the deceased workman and entered judgment against the defendant compensation carrier awarding plaintiffs death benefits and denying relief to the Second Injury Trust Fund which claimed the same death benefits claimed by plaintiffs. The Second Injury Trust Fund appealed contending that the admissible evidence was legally and factually insufficient to support express findings that the plaintiff daughters expected and relied upon and were dependent upon the support and assistance of the deceased workman to increase their standard of living. Affirmed.

The right of dependent children of the deceased employee to recover death benefits is to be determined by the facts as they exist at the time of the death of the deceased. Tex.Rev.Civ.Stat.Ann. art. 8306, § 8a. An adult dependent child is entitled to death benefits under the compensation act. Hartford Accident & Indemnity Co. v. Crowley, 509 S.W.2d 939 (Tex.Civ.App.-Waco 1974, writ ref'd n. r. e.). Further, a claimant who is partially dependent on the deceased workman for support is entitled to compensation. Aetna Casualty & Surety Company v. Cassavaugh, 486 S.W.2d 815 (Tex.Civ.App.-Houston (14th Dist.) 1972, writ ref'd n. r. e.); Stanaland v. Traders & General Ins. Co., 145 Tex. 105, 195 S.W.2d 118 (1946); Lumbermen's Reciprocal Ass'n v. Warner, 234 S.W. 545 (Tex.Civ.App.-Beaumont 1921) aff'd 245 S.W. 664 (Tex.Com.App.1922, jdgmt. adopted).

In Lumbermen's Reciprocal the court stated the rule as follows:

. . . It is an accepted rule in compensation cases that partial dependency may exist although the alleged dependent could have subsisted without the labor of the employe, or is not without the necessities of life. The test is: Was the alleged beneficiary relying in whole or in part upon the labors of the deceased for support?

The evidence in the case before us shows small but regular cash contributions from the deceased to his married daughters, which continued over a period of several years and up to the time of his death. The contributions were used for regular living expenses. The evidence also shows gifts and isolated larger contributions when the daughters needed assistance in paying for such items as rent, tires, and a baby bed.

We overrule appellant's contention that the trial court erred in admitting evidence of support, gifts, and contributions made by the deceased to his daughters prior to the year of his death. In Georgia Casualty Co. v. Campbell...