Roelfs v. Sam P. Wallingford, Inc.

• Decision Date: 16 July 1971
• Docket Number: No. 46306,46306
• Citation: 207 Kan. 804,486 P.2d 1371
• Parties: Linda Kannard ROELFS, Appellee, v. SAM P. WALLINGFORD, INC., and Michigan Millers Mutual Insurance Company, Appellants.
• Court: Kansas Supreme Court

Page 1371

486 P.2d 1371

207 Kan. 804

Linda Kannard ROELFS, Appellee, v. SAM P. WALLINGFORD, INC., and Michigan Millers Mutual Insurance Company, Appellants.

No. 46306.

Supreme Court of Kansas.

July 16, 1971.

Syllabus by the Court

In an appeal in a workmen's compensation proceeding, the record is examined and it is held: (1) The trial court's finding that the deceased workman was respondent's employee at the time of his fatal injury is supported by substantial competent evidence; (2) deprivation of parental rights in a child pursuant to K.S.A.1970 Supp. 38-824(c) terminates the parental obligation of support; and (3) within the meaning of the workmen's compensation act a child is no longer a dependent of a workman whose parental rights have been terminated and such child is not entitled to workmen's compensation benefits upon the workman's death.

Byron Brainerd, of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, argued the cause and was on the brief, for appellants.

Kenneth E. Peirce, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, argued the cause and was on the brief, for appellee.

Hal Des Jardin, Atty. for State Dept. of Social Welfare, argued the cause on behalf of Mary Anne Kannard, a minor.

HARMAN, Commissioner:

Two separate issues are presented in this appeal in a workmen's compensation proceeding.

The first is the familiar question of the relationship between the workman and the respondent at the time of the former's fatal injury-Was the workman respondent's employee, or was he an independent contractor? The second issue, if the death be found to be compensable, involves the effect of judicial termination of parental rights upon a minor child's entitlement to compensation, and is one of first impression.

Linda Kannard Roelfs, who was married to the workman Jack Anthony Kannard at the time of his death and who remained his widow and unmarried for a period of sixty-four weeks thereafter, prosecutes the claim in her own behalf and for their minor daughter, Mary Anne Kannard. The state department of social welfare has appeared throughout the proceedings in behalf of the minor child but filed no brief in this court in support of its position.

The trial court made an award of compensation in the maximum statutory amount, payable during the first sixty-four weeks in equal proportion between the widow and the minor child, and thereafter to the minor child until fully paid. Respondent Sam Wallingford, Inc., and its insurance carrier have appealed.

We deal first with the relationship between the deceased workman and the respondent.

All the fact-finders (examiner, director and trial court) found that on April 6, 1966, the date of Kannard's injury and death, he was respondent's employee and not an independent contractor. Appellants contend there was no substantial evidence to support that finding. We cannot agree.

Appellants' contention is largely bottomed on the fact the deceased workman's father made certain statements in a deposition which were inconsistent with his later testimony before the examiner. Upon appeal we are not concerned with such matters, resolution of which lies within the province of the trier of the fact upon consideration of all the evidence.

Briefly stated, the evidence in support of the trial court's finding reveals the following. Jack Kannard and his father orally agreed to construct a dump or boat pit at the grain elevator owned and operated by appellant Wallingford at Coldwater, Kansas, and had commenced such undertaking. On April 6, 1966, in the progress of this work, while the two Kannards and others were removing a large concrete block by means of a caterpillar tractor, a cable attached to the block broke and struck Jack Kannard, causing his immediate death. During the course of the project each of the two Kannards had kept his own time and each was paid weekly by Wallingford at the rate of $3.90 per hour. They were under the supervision and control of an officer of the Wallingford company, Paul Wallingford, who gave directions and instructions as to what was to be done, and who had the right to 'fire' either at any time. After the fatal incident the senior Kannard never completed the contemplated project. The Wallingford company paid for all material and for rental of equipment used in the job and paid also for the services of another man who assisted the Kannards in their work at the elevator. The company often performed repair and remodeling work on its elevators by using its own maintenance crew. The foregoing evidence amply supports the finding that the decedent was an employee of appellant Wallingford at the time of his death. Pules respecting this aspect are well established (Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P.2d 10) and further iteration could add nothing to the body of our law. Determination of this issue establishes entitlement of appellee Linda Kannard Roelfs to compensation for herself during the period following her husband's death she remained unmarried.

Appellants further contend the minor child, Mary Anne Kannard, was not a dependent of the workman at the time of his death within the meaning of the Kansas workmen's compensation act and therefore is not entitled to compensation. Further facts must be stated upon this point.

The decedent Jack Kannard and his wife Linda were married on June 1, 1965. Their child, Mary Anne, was born October 11, 1965, at a hospital in Atchison, Kansas. The child was born blind. Immediately after birth her parents turned her over to the Atchison county social welfare department. Neither parent ever saw her and neither had contributed anything toward her support up to the time of the father's death on April 6, 1966. On November 10, 1965, the juvenile court of Atchison county, Kansas, declared Mary Anne Kannard to be a dependent and neglected child within the meaning of the juvenile code and, pursuant to K.S.A. 38-824(c), as amended, found her parents to be unfit persons to have her custody and permanently deprived them of their parental rights in Mary Anne. The court committed the child to the state department of social welfare. No question has been raised respecting the propriety of that proceeding.

We quote further excerpts from the testimony of appellee respecting the disposal of the child:

'Q. Well, can you tell us why you were so disinterested in the child that you never saw it and you gave up its custody?

'A. Well, it wasn't my idea in the first place. Before we got married we had decided that. I agreed to it because I was in love with my husband and I wanted our own life without any trouble.

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'Q. (By Mr. Brainerd) Now, the 'we' you have reference to is Jack and you, is that correct?

'A. Yes.

'Q. And am I to understand that this child was conceived before your marriage to Jack?

'A. Yes.

'Q. Was he the father of the child?

'A. He was.

'Q. And so before-if I understand you correctly, it was before the child was born he had prevailed upon you to give up the custody, possession and custody of the child when it was born, is that correct?

'A. Yes.

'Q. Was your husband employed on October 11, 1965, when the child was born?

'A. Yes.

'Q. And did he continue to be employed from that date until the date of his death, April 6, 1966?

A. Not every day.

'Q. Well, generally he was employed and had an income from his work, is that correct?

'A. Yes.

'Q. During that period of time between October 11, 1965, and April 6, 1966, did your husband ever contribute anything toward the support or maintenance of this child?

'A. No.

'Q. Did you ever contribute anything towards the support and maintenance of this child between the date of its birth and April 6, 1966?

'A. No 'Q. Did you provide for it in any fashion, whether by cash or clothes or gifts or anything?

'A. We paid hospital bills to get me out of the hospital.

'Q. No, my question was limited to the child.

'A. No.

'Q. Have you ever made any effort to see the child?

'A. Well, it was my understanding that I couldn't.'

Upon oral argument we were told the child has never been adopted but has been cared for in a private foster home at state social welfare department expense.

Our workmen's compensation act provides the following definition:

"Dependent's 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. 44-508 (j), as amended.)

The workmen's compensation law in effect at the time of the workman's death provided:

'The amount of compensation under this act shall be:

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'(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 section 45-511 of the General Statutes Supplement of 1961 and any amendments thereto, but not exceeding fifteen thousand dollars ($15,000) and not less than two thousand five hundred dollars ($2,500): * * *' (K.S.A. 44-510.)

Our opinions construing the foregoing provisions, in cases where there has been a legal obligation on the part of a workman to support his child, establish the rule that whether a claimant in a workmen's compensation proceeding is a dependent of a deceased workman is a question of fact and such dependency is to be determined as of the date of the accident. They are in accord with the rule generally that proof of bare legal obligation to support, unaccompanied by either actual support by the decedent or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency (see Richardson v. Robert Drummond Trucking, 204 Kan. 385, 461 P.2d 754; also 2 Larson's Workmen's Compensation Law, § 63). However, we have no precedent of our own, and find little elsewhere, as to the effect of judicial termination...