Rand v. Lafferty Transportation Co.

• Decision Date: 10 July 1939
• Docket Number: 6617
• Parties: MRS. MAMIE RAND, Mother of WILLIAM PETER MITCHELL, Appellant, v. LAFFERTY TRANSPORTATION CO., Employer, and STATE INSURANCE FUND, Surety, Respondents and Cross-appellants
• Court: Idaho Supreme Court

92 P.2d 786

60 Idaho 507

MRS. MAMIE RAND, Mother of WILLIAM PETER MITCHELL, Appellant, v. LAFFERTY TRANSPORTATION CO., Employer, and STATE INSURANCE FUND, Surety, Respondents and Cross-appellants

No. 6617

Supreme Court of Idaho

July 10, 1939

WORKMEN'S COMPENSATION-INJURY ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT-RESULTING DISEASE-FINDINGS OF BOARD-DEPENDENCY-COMPENSATION.

1. One whose employment brings him within scope and benefit of the Workmen's Compensation Law is entitled to compensation for loss of earning capacity due to injury by accident arising out of and in course of his employment. (I. C. A sec. 43-901 et seq.)

2. One who is dependent upon injured employee at time of accident arising out of and in course of employment is entitled to compensation for loss of support due to employee's death if employee dies as a result of the accident but is not entitled to compensation for loss of earning capacity of the employee during his lifetime. (I. C. A., sec. 43-901 et seq.)

3. In absence of evidence of partial dependency of mother on deceased employee, Industrial Accident Board could not fix amount of compensation therefor. (I. C. A., sec. 43-1101.)

4. Where employer and surety did not, by specification of error challenge Industrial Accident Board's conclusion of law that claimant was entitled to an award of compensation based on "actual wholly dependency" on deceased son, no question of law was presented regarding what effect, if any the resumption of marriage relation between claimant and her husband had on her claim for compensation based on dependency on her son. (I. C. A., sec. 43-901 et seq.)

5. The burden was on claimant to prove that the transverse myelitis from which employee died was result of injury sustained by employee in course of employment. (I. C. A., sec. 43-901 et seq.)

6. Where there was substantial conflict in medical testimony regarding whether disease from which employee died was transverse myelitis or acute poliomyelitis, findings of Industrial Accident Board that employee died from transverse myelitis caused by infection produced by splinter wound in hand received in course of employment would not be disturbed. (I. C. A., sec. 43-901 et seq.; Const., art. 5, sec. 9, as amended, Sess. Laws 1935, p. 377.)

7. Evidence sustained determination that mother was actually wholly dependent upon deceased son at time of accident resulting in his death. (I. C. A., sec. 43-901 et seq.)

APPEAL from the Industrial Accident Board.

Proceeding by Mamie Rand for compensation under the Workmen's Compensation Act, opposed by Lafferty Transportation Co., and State Insurance Fund, Surety. From an order of the board awarding compensation, claimant appeals and the employer and the State Insurance Fund cross-appeal. Judgment affirmed.

Award of the board affirmed. No costs awarded.

J. Ward Arney, for Appellant.

A mere application of the facts to the law is conclusive that total temporary compensation should have been granted from November 4, 1937, to December 14, 1937, for that is the period of total disability, culminating in death.

It takes no argument, but mere application of law to the record to demonstrate that the board, in omitting the word, "partial" from the award, illegally limited the award.

The statute (sec. 43-1102) says "wholly" or "partially" and judges dependency from the time of the accident.

Miller v. G. L. Arnett & Son, 58 Idaho 420, 74 P.2d 177, points out that a parent's rights to compensation are based as much upon reasonable expectation as upon certainties; and as much upon some comforts as upon bare necessities.

Clarence L. Hillman, for Respondents and Cross-appellants.

The burden of proof is upon the appellant to show that decedent suffered a personal injury by accident arising out of and in the course of his employment which resulted in the transverse myelitis from which he died. (I. C. A., sec. 43-1001; Walker v. Hyde, 43 Idaho 625, 253 P. 1104; Hawkins v. Bonner County, 46 Idaho 739, 271 P. 327; Larson v. Ohio Match Co., 49 Idaho 511, 289 P. 992; Croy v. McFarland-Brown Lbr. Co., 51 Idaho 32, 1 P.2d 189.)

In order that the injury resulting from the transverse myelitis, it must have been the result of the injury that decedent sustained in running the sliver into his hand. (I. C. A., secs. 43-1001, 43-1809; Walker v. Hyde, supra; Hawkins v. Bonner County, supra; Larson v. Ohio Match Co., supra; Croy v. McFarland-Brown Lbr. Co., supra.)

For appellant to be entitled to an award in this case the burden of proof is upon her to establish, among other things, that she was actually dependent, wholly or partially, upon the deceased. (I. C. A., sec. 43-1102; Ybaibarriaga v. Farmer et al., 39 Idaho 361, 228 P. 227.)

HOLDEN, J. Budge, J., and Givens, J., concur. Ailshie, C. J., did not sit at the hearing or participate in the decision. Morgan, J., did not participate in the decision.

OPINION

HOLDEN, J.

--Claimant Mamie Rand was the mother of William Peter Mitchell. She and her husband had been divorced about 18 years prior to the hearing of this cause. In 1923, claimant married Rand. In March, 1937, Rand and claimant separated. On or about September 20, 1937, the son went to work for respondent, Lafferty Transportation Co., as a laborer on one of its tug boats. On or about October 6, 1937, while loading wood on a boat, a splinter was thrust into Mitchell's right hand between the thumb and index finger. The injury resulted in an abscess which made medical treatment necessary. He was treated by a Dr. Barclay, commencing November 4, 1937. Young Mitchell died December 14, 1937. December 22, 1937, his mother filed a claim for compensation based on her dependency on her son. April 1, 1938, claimant resumed "relationship with Mr. Rand." Application was made and filed for a hearing of the claim June 20, 1938. June 28, 1938, the state of Idaho on the relation of Harry C. Parsons, then state auditor, filed a claim under subdivision 6, section 43-1101, I. C. A., as amended by chapter 147, Session Laws 1935.

The cause was tried at Coeur d'Alene, July 9, 1938. July 21, 1938, findings of fact and conclusions of law were made and filed and the following award entered:

"WHEREFORE, IT IS ORDERED, AND THIS DOES ORDER, That the claimant, Mamie Rand, be, and she hereby is, awarded against the defendants, Lafferty Transportation Company, employer, and State Insurance Fund, surety, and each of them, weekly compensation at the rate of $ 7.60 from and after the 14th day of December, 1937 to the first day of April, 1938, and thereafter during the continuation of a condition of actually wholly dependency but not to exceed a period of 400 weeks from and after the 4th day of November, 1937, and for the additional sum of $ 190 expended for burial expenses."

August 2, 1938, claimant filed notice of appeal to this court from that part of the above-quoted award granting compensation "from and after the 14th day of Dec., 1937, to the first day of April, 1938, and thereafter during the continuation of a condition of actually wholly dependency." August 15, 1938, the Lafferty Transportation Co., employer, and the State Insurance Fund, surety, cross-appealed. No appeal was prosecuted in behalf of the state of Idaho.

Claimant contends the board erred:

"1. In commencing compensation on the date of the death, Dec. 14, 1937, instead of from Nov. 4, 1937, when deceased had to quit work by reason of accidental injury.

2. In limiting future compensation to a condition of actual wholly dependency, instead of wholly or partially dependent. (Sec. 43-1102.) (No partial dependency shown.)

3. In injecting into the award the limitation, 'and thereafter during the continuation of a condition of actual wholly dependency.'"

One whose employment brings him within the scope and benefits of the Workmen's Compensation Law is entitled to compensation for loss of earning capacity due to injury by accident arising out of and in the course of his employment. And one who is dependent upon such employee, at the time of the accident, as provided by statute, if the employee dies as a result of the accident, is entitled to compensation for loss of support due to the death, but is not entitled to compensation for loss of earning capacity of the employee during his lifetime. (Secs. 43-1001, 43-1003, 43-1101, 43-1102, 43-1106, 43-1110, 43-1112, and 43-1113, I. C. A.)

It will be noted the award is based upon total dependency and makes no provision for partial dependency. As will hereinafter appear, the evidence shows claimant was wholly dependent on her son at the time of the accident. And as will further appear there is an entire lack of evidence of partial dependency. Section 43-1101, supra, fixes the amount of compensation to be paid to a dependent mother of a deceased employee at 25 per cent of his weekly wages where she has been wholly dependent upon him, and a proportionate amount, in the discretion of the board, where partially dependent. Section 43-1102, supra, requires dependency must exist at the time of the accident. Section 43-1103, supra, provides compensation shall be paid "during dependency as hereinbefore defined but in no case to exceed 400 weeks." In the absence of evidence of partial dependency the board could not fix the amount of compensation therefor.

On the cross-appeal, cross-appellants challenge the sufficiency of the evidence to sustain the finding and conclusion the infection from the wound, caused by the sliver entering the hand of the deceased, resulted in the disease which caused his death. Dr. Barclay, who began treating Mitchell November 4, 1937, testified "the wound cleared up nicely and progressed all right and was practically well on the 9th of Nov." He further testified he was called...