Richardson v. Robert Drummond Trucking

• Decision Date: 06 December 1969
• Docket Number: No. 45782,45782
• Citation: 204 Kan. 385,461 P.2d 754
• Parties: Peggie M. RICHARDSON, widow, Appellee, and Warren I. Richardson, a minor, by Ann M. Rico, Mother, Appellant, v. ROBERT DRUMMOND TRUCKING, Respondent, and Bituminous Casualty Corporation, Insurance Carrier.
• Court: Kansas Supreme Court

Page 754

461 P.2d 754

204 Kan. 385

Peggie M. RICHARDSON, widow, Appellee and Warren I. Richardson, a minor, by Ann M. Rico, Mother, Appellant, v. ROBERT DRUMMOND TRUCKING, Respondent and Bituminous Casualty Corporation, Insurance Carrier.

No. 45782.

Supreme Court of Kansas.

Dec. 6, 1969.

Syllabus by the Court

1. Whether a claimant in a workmen's compensation proceeding is a dependent of a deceased workman is a question of fact. Such dependency is to be determined as of the date of the accident.

2. The degree of dependency in a workmen's compensation case is a question of fact and findings with respect thereto will not be disturbed on appellate review when there is any evidence to support them.

3. In an appeal in a workmen's compensation proceeding from the judgment of the trial court finding that a minor child of the deceased workman was only partially dependent upon the workman, it is held, under the circumstances stated, this factual finding, and the resulting judgment, may not be disturbed on appellate review.

Edmond L. Kinch, Wichita, argued the cause and was on the brief for appellant.

Ronald Barta, Salina, argued the cause and was on the brief for appellee.

HARMAN, Commissioner.

At issue here is distribution of a workmen's compensation award between the dependents of a deceased workman. The contestants are the widow and a minor child born of a previous marriage.

The workman, Warren Emery Richardson, was accidentally killed November 28, 1967, while in respondent's employ. Claim for compensation was duly made by his widow and by the minor child. All issues essential to recovery of compensation except those of dependency were stipulated favorably to the claimants.

The evidence upon the disputed issue revealed the following:

Warren I. Richardson, appellant herein, is a son of decedent by a previous marriage with Ann M. Rico, having been born March 27, 1954. Decedent and Ann were divorced December 9, 1959, in Roswell, New Mexico. Appellant's custody was granted to Ann. The divorce decree provided that decedent should pay $30.00 per month toward appellant's support. Ann married her present husband, Angel L. Rico, on December 23, 1959. Decedent was then in the United States Air Force. By means of a service allotment he commenced making the $30.00 support money payments and continued them until his retirement from the air force in November, 1965. Thereafter, he was having financial difficulties and, with Ann's consent, he made only insignificant payments toward appellant's support. Appellant was supported by his mother and stepfather. Decedent did arrange for service benefits to be paid appellant in the event of his death. During the time the $30.00 monthly payments were received, they were not sufficient to take care of appellant's needs and additional provision had to be made by Ann and her husband.

Appellee Peggie M. Richardson married decedent March 18, 1965, and remained his wife until his death November 28, 1967. She had never been employed and had no other source of income while married, being dependent upon decedent for her support.

Based upon the foregoing the examiner found the widow was a wholly dependent person within the meaning of the workmen's compensation law and that the minor was a partially dependent person and, pursuant to the workmen's compensation director's rule 51-10-4, he awarded full compensation to the widow with nothing to the minor. These findings and the award were approved by the director and upon appeal were adopted by the district court and incorporated in its judgment. The minor has appealed to this court.

The director's rule 51-10-4 provides in part:

'Where there are both wholly dependent persons and partially dependent persons, the wholly dependent persons are entitled to all compensation due to the complete exclusion of the partially dependent persons.'

Appellant does not challenge this rule nor its application to the facts found. His sole contention is that the trial court erred in failing to find he was a wholly dependent person within the meaning of the compensation law and in failing to order an apportionment of the award between him and appellee.

K.S.A. 44-508, as amended, sets forth the following definition:

'(j) 'Defendants' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. 'Members of a family,' for the purpose of this act, means only legal widow or husband, as the case may be, and children; * * *.'

K.S.A.1967 Supp. 44-510 provided:

'The amount of compensation under this act shall be:

'(2) Where death results from the injury. (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three (3) times his average yearly earnings, computed as provided in K.S.A. 44-511, but not exceeding sixteen thousand five hundred dollars ($16,500) and not less than two thousand five hundred dollars ($2,500):

'(b) If a workman does not leave any such dependents but leaves dependents in part dependent on his earnings, such percentage of the sum provided for total dependency in paragraph 2(a) of this section as employee's average annual contributions which the deceased made to the support of such dependents during the two (2) years preceding the injury bears to his average annual earnings during a contemporaneous period, during such two (2) years.

'(c) The director shall have the power and authority to apportion the compensation allowed under either subsection (a) or subsection (b) hereof in accordance with the degree of dependency as of the date of the accident * * *.'

Appellant relies upon three of our decisions in contending he should be declared to be wholly dependent upon the deceased workman. The first two are Wade v. Scherrer & Bennett Const. Co., 143 Kan. 384, 54 P.2d 944, and Thomas v. Bone, 191 Kan. 453, 381 P.2d 373.

In Wade a minor daughter of the deceased workman was the only claimant of compensation. The child's parents were divorced and she had been living with her maternal grandparents. The mother had made only inconsequential contribution to the child's support. The father had left the family home prior to the divorce and had made no contribution to the child's support since the divorce. He had later returned to Cowley County, Kansas, where his former wife resided. He was then in poor health and unable to work but he urged a remarriage and made promises to support both his former wife and his daughter when he was able. He had obtained employment for only a short period of time prior to his death but had made no contribution to the daughter. The trial court found there was a reasonable probability the father's obligation of support would have been fulfilled and further found the daughter was wholly dependent upon the deceased. Upon appeal this court affirmed, reviewing certain authorities and stating:

'These authorities sustain the view that a dependent of a deceased workman, within the meaning of the Workmen's Compensation Law, must be within that class of persons named in the statute as dependents, and must be in fact dependent, in whole or in part, on the workman at the time of the accidental injury which results in death. They also hold that whether one claims to be a dependent is within the class defined by the statute, and, if so, whether he was dependent on the workman at the time of his fatal injury, and, if dependent, whether wholly or in part dependent, and, if only partially dependent, the degree of dependency, are questions of fact to be determined by the commission or court provided by statute for weighing evidence, passing on credibility of...