Schwan v. Premack

• Decision Date: 09 March 1945
• Docket Number: 8760.
• Citation: 17 N.W.2d 911,70 S.D. 371
• Parties: SCHWAN et al. v. PREMACK et al.
• Court: South Dakota Supreme Court

17 N.W.2d 911

70 S.D. 371

SCHWAN et al. v. PREMACK et al.

No. 8760.

Supreme Court of South Dakota

March 9, 1945

Rehearing Denied April 17, 1945.

E. B. Harkin, of Aberdeen, for appellants.

Davenport Evans & Hurwitz, of Sioux Falls, for respondents.

RUDOLPH Judge.

This is a proceeding under the Workmen's Compensation Law, SDC Title 64, Ch. 64.01. The claim for compensation was presented by the parents of a deceased minor child. The question presented is whether these parents are entitled to reover under the provisions of SDC 64.0402(1), which provides for compensation to a parent for an injury to an employee resulting in death when such employee at the time of his death 'was under legal obligation to support' the parents. The trial court found under the facts presented that the deceased was under no legal obligation to support his parents, the claimants. The facts disclose that the deceased Bernard Schwan, was a high school student eighteen years of age at the time of his death. Death resulted from an injury which arose out of and in the course of his employment. Bernard lived at home with his parents and all of his earnings were turned over to his mother, Rose Schwan, who used such money for general family purposes except that Bernard was furnished some spending money and clothing. During the year preceding his death Bernard had earned and turned over to his mother $483. Bernard's father, Frank Schwan, is 56 years old and employed as a street laborer by the city of Aberdeen. For some time the father has not been physically strong but he has been kept on the payroll by the city and given light work. He has been employed in the same capacity since 1912 and his average annual earnings during the period had been approximately $1,000. The mother, Rose Schwan, is 49 years old and has no employment other than that of a housewife. Since 1941, when Mrs. Schwan was operated for the removal of a tumor, she has been in poor health but able to do the housework with the help of a twelve-year-old daughter and a fifteen-year-old son. There were eight children in the family but at the time of the injury suffered by Bernard, only three of the children were at home. Mr. and Mrs. Schwan own a home in the city of Aberdeen valued at $2,500 and free from incumbrance. They also own the house furnishings but no other money or property. They owe no outstanding debts with the exception of a small balance remaining of Bernard's funeral expenses. It appears from the record that each of the children while living at home and working contributed to the family income and support.

Prior to the revision of the Code in 1939, dependency was the test which determined the right of parents to compensation for the loss of son. Day et al. v. Sioux Falls Fruit Company et al., 43 S.D. 65, 177 N.W. 816; Stratton et ux. v. Interstate Fruit Co. et al., 47 S.D. 452, 199 N.W. 117; and Leach v. J. I Case Threshing Machine Co., 53 S.D. 13, 219 N.W. 884. The legislature in the revision of the code changed this test from dependency to the legal obligation to support. SDC 64.0402. The legal obligation to support is the test used to determine the right of the widow, child or children of a deceased employee to compensation, and in this respect no change was made in 1939. Construing the law as it existed prior to 1939 this court held that there was no legal obligation on a parent to support his adult children, other than the obligation found in the then Sec. 191 R.C.1919, now SDC 14.0312, which provides: 'It is the duty of the father, the mother, and the...