McBride v. Industrial Com'n

• Citation: 49 P.2d 386,97 Colo. 166
• Decision Date: 11 March 1935
• Docket Number: No 13661.,13661.
• Parties: McBRIDE et al. v. INDUSTRIAL COMMISSION et al.
• Court: Colorado Supreme Court

49 P.2d 386

97 Colo. 166

McBRIDE et al. v. INDUSTRIAL COMMISSION et al.

No 13661.

Supreme Court of Colorado, En Banc.

March 11, 1935

Rehearing Denied May 6, 1935.

Error to District Court, Logan County; Arlington Taylor, Judge.

Proceeding under the Workmen's Compensation Act by Kathryne McBride and Shelia McBride, for the unpaid portion of the sum theretofore awarded to Herschell McBride, the husband and father of the respective claimants, for injuries sustained by him in the course of his employment, opposed by the Employers' Liability Assurance Corporation, Limited insurer. From a judgment of the district court affirming an order of the Industrial Commission which affirmed the report of the referee denying the claim, the claimants bring error.

Reversed with directions.

HILLIARD and BOUCK, JJ., dissenting.

Raymond L. Sauter and Raymond M. Sandhouse, both of Sterling, for plaintiffs in error.

Edgar McComb and Milton D. Green, both of Denver, for Employers' Liability Assurance Corporation.

Paul P Prosser, Atty. Gen., and M. S. Ginsberg, Asst. Atty. Gen., for Industrial Commission.

Yeaman, Gove & Huffman, Wolvington & Wormwood, January & Yegge, L. Ward Bannister, Henry H. Clark, William E. Hutton, Julian P. Nordlund, Harold Clark Thompson, Frank C. West, and Blount, Silverstein & Rosner, all of Denver, amici curiae on petition for rehearing.

HOLLAND, Justice.

On February 27, 1931, Herschell McBride, a mechanic in a tire shop in Sterling, Colo., sustained an injury in the course of his employment. He applied for compensation through the Industrial Commission, and in October, 1932, was awarded the sum of $3,640, for permanent partial disability, to be paid in weekly installments, which were paid from October, 1932 until his death, July 18, 1933. In November, 1931, he married Kathryne McBride, who is plaintiff in error, and who was living with him at the time of his death. February 9, 1933, Sheila McBride, a child, was born and she is the other plaintiff in error.

Kathryne McBride, the wife, on her own behalf and that of her minor child, filed a claim for the unpaid portion of the sum theretofore awarded to her husband. This claim was denied by the referee, the Industrial Commission, and the district court, and on the judgment of the district court error is assigned.

In this opinion, Herschell McBride will be designated as the deceased; plaintiff in error Kathryne McBride as the claimant; and reference will be made to defendants in error, as the commission and insurer, respectively.

There is no dispute concerning the facts as above mentioned. It is apparent, and is conceded, that the referee, the commission, and the court, in denying the claim, relied upon section 9, c. 201, p. 738, Sess. Laws 1923, amendatory of section 57, c. 210, p. 722. Sess. Laws 1919, which, so far as is material in this case, is as follows: 'The question as to who constitute dependents and the extent of their dependency shall be determined as of the date of the accident to the injured employee and the right to death benefits shall become fixed as of said date irrespective of any subsequent change in conditions and such death benefits shall be directly payable to the dependent or dependents entitled thereto or to such person legally entitled thereto as the Commission may designate.'

Counsel for the commission and the insurer ably contend that, under this statute, the claimant, having married the employee subsequent to the date of the accident, was not a dependent, and not entitled to compensation. Counsel for claimant insist that the matter is not to be determined solely by the provisions of the statute above quoted, and that other provisions of the Workmen's Compensation Act must be considered, especially section 52, c. 210, p. 720, Sees. Laws 1919, which is as follows:

'For the purposes of this act the following described persons shall be conclusively presumed to be wholly dependent:

'(a) Wife, unless it be shown that she was voluntarily separated and living apart from the husband at the time of his injury or death and was not dependent in whole or in part on him for support.

'(b) Minor children of the deceased under the age of eighteen years. The term 'minor child' shall include posthumous children or a child legally adopted prior to the injury.'

Claimant's counsel further contend that the dependency of a wife is thereby determined as a matter of law, when there is a showing that she was living with her husband at the time of his death, and was dependent upon him for support; and that there is a conclusive presumption that she is a dependent for all purposes of the Compensation Act. With the last contention we agree, and adhere to the former decisions of this court, which so determine. London Guarantee & Accident Co. v. Industrial Commission, 78 Colo. 478, 242 P. 680; Vaughn v. Industrial Commission, 79 Colo. 257, 245 P. 712.

To give full import to the purposes of the Workmen's Compensation Act as originally enacted and later amended (Laws 1919, p. 700, as amended), all portions thereof should be read together and harmonized, if possible. It unquestionably is clear that certain persons, under prescribed conditions, shall be considered dependents, and in that connection, as it relates to other purposes of the act, section 1, c. 174, p. 816, Sess. Laws 1931 (amending Laws 1919, p. 720, § 53), which was enacted subsequently to section 57 of the 1923 act above quoted, is applicable to this case, and is as follows: 'Children eighteen years of age or over, husband, mother, father, grandmother, grandfather, sister, brother or grandchild, who were wholly or partially supported by the deceased employee at the time of his death and for a reasonable period of time immediately prior thereto, shall be considered his actual dependents. If such dependents be a son, grandson, or brother eighteen years of age of over, a husband, father or grandfather, to be entitled to compensation, they must prove that they were incapable of or actually disabled from earning their own living during the said time; Provided, however, if said incapacity or disability is temporary only, compensation shall be paid only during the period of such temporary incapacity or disability.'

This later section fixes the condition upon which certain persons are to be considered dependent. It determines their dependency as of the time of the employee's death, and does so regardless of the time of the accident. It then follows that this latter section, to which reference will be made as amended section 53, is in conflict with amended section 57, hereinBefore quoted, if said amended section 57 is to be construed as fixing all dependencies as of the time of the accident. We do not so construe it. Injury and death are not always coincident. This being true, conditions constituting dependency may change during the intervening period, as is often the case, and it must follow that the extent of the right to death benefits cannot always be fixed as of the date of the accident. The wording of the amended section 57 presupposes a question to be determined. That question is 'who' and 'the extent.' Section 52, Sess. Laws 1919, p. 720, and amended section 53, herein quoted, leave no question to be determined. Dependency and extent are fixed as a matter of law. 'For the purposes of this act' the Legislature said the wife is conclusively presumed to be wholly dependent on the husband if living with him at the time of his injury or his death. Had the Legislature intended to exclude a postinjury wife, words were just as available then as now, to so specifically state.

Counsel for the commission and insurer rely upon the words 'irrespective of any subsequent change in conditions' as determinative of the rights of the claimant here who became a wife subsequent to the accident, and deal with the matter as a subsequent change of the condition of the injured employee. The quoted words can only refer to dependents, because the Legislature was considering only dependents in fixing the right to a death benefit. The injured employee must first have died. If applied as counsel contends for, the word 'irrespective' has no fixed meaning, because amended section 58 (Laws 1919, p. 722, § 58, as amended by Laws 1923, p. 739, § 10), immediately following, enumerates 'subsequent' happenings that either terminate or change the benefits.

Many cases from other states are cited, and excerpts from the opinions freely quoted, but we do not find them helpful or controlling, because the entire Workmen's Compensation Act of Colorado, as now amended, has no counterpart in any of those states; however, a similarity in some parts, which are discussed in some of the cited cases, tends only to confuse....