Paul v. State Indus. Acc. Commission

• Decision Date: 27 November 1928
• Citation: 127 Or. 599,272 P. 267
• Parties: PAUL ET AL. v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

272 P. 267

127 Or. 599

PAUL ET AL. v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon

November 27, 1928

Department 1.

Appeal from Circuit Court, Jackson County; Orlando M. Corkins Judge.

Action by B. F. Paul and others against the State Industrial Accident Commission for compensation for the death of Floyd Raymond Paul, employee. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

This is an appeal by the State Industrial Accident Commission from a judgment in favor of plaintiffs based upon a verdict of the jury. Plaintiffs are the father, mother, and minor sister of Floyd Raymond Paul, deceased. Decedent lost his life while working on a bridge spanning Rogue river near Gold Hill, from which he fell and was drowned. The father was 49 years of age at the time of the fatal accident, the mother 42, and the sister 16. Decedent was 21 years of age. He lived in his father's family and contributed his wages to the general fund used for the maintenance and support of the family. Decedent had a brother also, of the age of 17 years. There is no substantial conflict in the testimony. The mother testified that the decedent either gave her his check or cashed it himself and gave the money to her, with the exception of a small sum used by him for incidental personal expenses. The award to plaintiffs amounted to $20 per month. Defendant appeals, basing its grounds on the order denying its motion for a directed verdict in favor of defendant and on the court's refusal to give requested instructions. The contention of defendant may be succinctly stated in effect that the evidence conclusively shows that the plaintiffs were not dependent upon the decedent's wages. That may be said to be the only contention on behalf of defendant. The requested instructions were intended to apprise the jury of the proper rules to be used by it in determining whether or not plaintiffs were either wholly or partially dependent upon the earnings of decedent.

Miles H. McKey, of Salem (I. H. Van Winkle, Atty. Gen., and Miles H. McKey, Asst. Atty. Gen., on the brief), for appellant.

C. F Pruess, of Grants Pass (C. F. Pruess, of Grants Pass, and Allison Moulton, of Medford, on the brief), for respondents.

COSHOW, J. (after stating the facts as above).

There is conflict among the authorities about the law applicable to dependents. The conflict may be accounted for to some degree by the difference in the language of the different statutes. There is a difference between the English statute and the American statutes. The former uses as a standard for determining dependents the financial loss to the dependents. The American authorities generally measure dependency by the amount contributed by decedent and the amount required by the beneficiaries according to their station and condition in life. The result generally of the two methods is the same but not always. All of the authorities agree that the question of whether or not claimants are dependent is one of fact. The authorities are unanimous in holding that dependency is determined as of the date of the fatal accident. Workmen's Compensation Act, C.J. 55 et. seq.; 28 R. C. L. 771 et seq.; 1 Bradbury's Workman's Compensation, 567 et seq., art. B.; 1 Schneider Workmen's Compensation Law, 941 et seq. See, also extensive notes as follows: L. R. A. 1916A, 248; L. R. A. 1918F, 288; Ann. Cas. 1913E, 480.

The testimony is not disputed to the effect that decedent lived in the family of petitioners and contributed substantially all of his earnings to the family support. His mother testified that the amount so contributed by decedent the year preceding his fatal accident averaged $40 per month. The verdict of the jury was to that effect. The father was capable, was working, and was earning at the time of the accident more than the son. The mother is strong enough to do her own work, but did not work outside of the family, so as to earn any money. The daughter is in school, is not strong, and did not contribute any money to the family income. Under the decisions of the courts of last resort having a statute similar to ours, the mere fact that the father is earning a greater wage than the son, and that the family could possibly exist without the son's earnings, does not prevent the parents and minor daughter from recovering as dependents. Conners v. Public Service Electric Co., 89 N. J. Law, 99, 97 A. 792.

Dependents are not required to live on the barest necessities of life. The rule as stated by most of the authorities is that the surviving dependents are entitled to continue to live as they had been living prior to the accident. The basic idea of the statute is compensation. Surviving relatives within the class named in the statute, to whose living decedent contributed, and upon whom they relied partially or wholly for support, are beneficiaries. The statute does not require destitution in order to be dependents. The statute should not be so construed as to encourage extravagance. In order for relatives to be dependents of an unmarried decedent, they must be dependent in fact on his contributions in order to continue to live in comfort according to the manner of living of people in their class and condition in life. McIntire v. Department of Labor and Industries, 125 Wash. 370, 216 P. 7; Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903; Appeal of Hotel Bond Co., 89 Conn. 143, 93 A. 245, 249; 28 R. C. L. 779; Geo. A. Lowe Co. et al. v. Industrial Com. of Utah, 56 Utah, 519, 190 P. 934; Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 A. 1025, L. R. A. 1916E, 110; Utah Fuel Co. v. Industrial Com., 67 Utah, 25, 245 P. 381, 45 A. L. R. 882; Daly Mining Co. et al. v. Industrial Com., 67 Utah, 483, 248 P. 125; Ogden City v. Industrial Com., 57 Utah, 221, 193 P. 857; Dumond's Case, 125 Me. 313, 133 A. 736; 28 R. C. L. 770, 771.

There was material evidence tending to prove that the claimants were dependent upon the decedent in part for their living. The family was somewhat in debt and the showing is sufficient to submit the case to the jury that the father's income was not sufficient to take care of such indebtedness and support the family properly. There was evidence that claimants partially relied on decedent for their support.

It was the duty of the trial court to instruct the jury as to what constituted dependency under the Workmen's Compensation Law (Or. L. § 6605 et seq.). The instructions of the court bearing upon that question are very meager and are as follows:

"* * * If, on the other hand, you should determine that they were dependent upon him at the time of his death, February 1, 1927, then it will be your duty to determine what was the average monthly contribution to the plaintiffs for their support for the year next preceding his death. That is--how much did this deceased contribute to the support of these plaintiffs during that year immediately preceding his death, and in determining that question--whether or not plaintiffs were dependent upon Floyd Raymond Paul--it must be determined from the facts which existed at the time of the accident and injury, which resulted in his death February 1, 1927.

"In determining the question as to the average monthly payment, it must be confined to the payments necessary for the support of these plaintiffs and no other.

"You are not to take into consideration any contributions made for the support of the deceased himself or for any boarder or anybody else, but the contributions that were actually made, the average monthly contributions actually made to these plaintiffs."

There is no attempt on the part of the court to instruct the jury as to the law to be applied in determining whether or not claimants were dependents. This ought to have been done. The question is here for the first time. That is the only question involved in the litigation. The jury was left without a proper standard for determining whether or not the claimants were dependent as that term is used in the statute.

Defendant requested the following instructions:

"II. The plaintiffs were not dependent upon

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