Smith v. Workmen's Compensation Appeals Bd.

• Decision Date: 29 September 1966
• Citation: 245 Cal.App.2d 292,53 Cal.Rptr. 816
• Court: California Court of Appeals
• Parties: David W. SMITH, M.D., Guarantee Insurance Company, a corporation, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and Harold Eugene Snook et al.,(Jacqueline Louise McDonald, deceased), Respondents. Civ. 8184.

Page 816

53 Cal.Rptr. 816

245 Cal.App.2d 292

David W. SMITH, M.D., Guarantee Insurance Company, a corporation, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and Harold Eugene Snook et al.,(Jacqueline Louise McDonald, deceased), Respondents.

Civ. 8184.

District Court of Appeal, Fourth District Division 1, California.

Sept. 29, 1966.

[245 Cal.App.2d 293] Arnold S. Petersen, Los Angeles, for petitioners.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Romaine E. Harper, Los Angeles, for Workmen's Compensation Appeals Board.

Donald C. Lieb, Los Angeles, for respondent Snook.

OPINION

COUGHLIN, Justice.

Petitioners seek annulment of a workmen's compensation award in favor of four minor children on account of the industrially caused death of their mother. The award was made by the Industrial Accident Commission, now known as the Workmen's Compensation Appeals Board, which will be referred to herein as the Commission. The issue is whether at the time of injury resulting in death the children were totally dependent upon their mother within the meaning of the workmen's compensation statute.

The mother and father were divorced. Custody of the minor children was awarded the latter with the right of reasonable visitation granted the former. The custody order made no provision for support. The children lived with their father, but from time to time stayed with their mother overnight or longer.

The referee hearing the matter found the children were supported in part by their father and in part by their mother; the latter contributed $3600 annually toward their support; and, for this reason, they were partially dependent upon her. The surviving father was not dependent upon the mother.

The evidence, under the elementary rule on review requiring acceptance of that version thereof which supports the award (Douglas Aircraft, Inc. v. Ind. Acc. Comm., 47 Cal.2d 903, 905, 306 P.2d 425), justifies the conclusion that while the mother and father were living together the mother's income was used in part to maintain the children; the father, after separation, was able to provide them with the necessities of life, but was not able to maintain them in that standard of living to which they had been accustomed prior to separation; the mother's contribution to their support after separation maintained them in that standard; and the amount of that contribution was as found by the referee.

Upon petition for reconsideration, the Commission, relying on the conclusive presumption prescribed by Labor Code § 3501, subd. (b), found the children were totally dependent upon the mother, and made an award accordingly.

Pertinent provisions of Labor Code § 3501, subd. (b) declare:

'The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee:

'* * *llo

'(b) A child under the age of eighteen years * * * upon the parent with whom he is living at the time of the injury of the parent or for whose maintenance the parent was legally liable at the time of injury, there being no surviving dependent parent.'

By express terms of this statute, the conclusive presumption applies to children of a mother who died as a result of an industrial injury if they were living with her at the time of the injury, or if she was legally liable for their support at that time, providing their surviving father was not dependent upon their mother. (Douglas Aircraft Co. v. Ind. Acc. Comm., 24 Cal.2d 340, 343, 149 P.2d 702.)

The primary issue in the case is whether the evidence supports the conclusion, implied in the Commission's finding of total dependency, ¹ that the mother of the children was legally liable for their support at the time of the injury resulting in her death. We conclude it does.

Evidence establishing facts to which the conclusive presumption of total dependency attaches as a matter of law need not show actual dependency, either total or partial as a matter of fact. (Fireman's Fund Indem. Co. v. Industrial Acc. Comm., 24 Cal.2d 942, 149 P.2d 705; Douglas Aircraft Co. v. Ind. Acc. Comm., supra, 24 Cal.2d 340, 149 P.2d 702; Federal Mutual L. Ins. Co. v. Indus. Acc. Comm., 195 Cal. 283, 289, 233 P. 335.) ²

In substance, Labor Code § 3501, subd. (b), prescribes a definition of total dependency for workmen's compensation purposes in addition to and wholly independent of the definition of total dependency used in determining its actual existence as a matter of fact. Stated otherwise, an award of compensation under the statute on account of the death of an employee is made to a child as a total dependent when the facts giving rise to the presumption exists, regardless of actual dependency. A review of the sufficiency of the evidence to support a finding of total dependency based upon the presumption is restricted to a consideration of the sufficiency of the evidence to support a finding of facts giving rise to the presumption. Thus, granted the existence of such facts, application of the presumption is not precluded by a showing the child actually did not receive any support from the deceased parent (Douglas Aircraft Co. v. Ind. Acc. Comm., supra, 24 Cal.2d 340, 343, 149 P.2d 702); received only a portion of his required support from that parent (Federal Mutual L. Ins. Co. v. Indus. Acc. Comm., supra, 195 Cal. 283, 289, 233 P. 335); was not entitled to receive any support from the deceased parent (Douglas Aircraft Co. v. Ind. Acc. Comm., supra, 24 Cal.2d 340, 343, 149 P.2d 702); received partial support from the surviving parent (Douglas Aircraft Co. v. Ind. Acc. Comm., supra, 24 Cal.2d 340, [245 Cal.App.2d 296] 341, 149 P.2d 702; Federal Mutual L. Ins. Co. v. Indus. Acc. Comm., supra, 195 Cal. 283, 290, 233 P. 335); was supported entirely by the surviving parent or another (Southern Cal. Edison Co. v. Indus. Acc. Comm., 92 Cal.App. 355, 359, 268 P. 415); was legally dependent for his entire support upon the surviving parent or another (Douglas Aircraft Co. v. Ind. Acc. Comm., supra, 24 Cal.2d 340, 343, 149 P.2d 702; Southern Cal. Edison Co. v. Indus. Acc. Comm., supra, 92 Cal.App. 355, 359, 268 P. 415); or partially supported himself. (Pacific Gold Dredging Co. v. Ind. Acc. Comm., 184 Cal. 462, 467--468, 194 P. 1, 13 A.L.R. 725.)

In the case at bench the Commission awarded compensation pursuant to Labor Code § 3501, subd. (b) under an implied finding that the deceased employee, at the time of the injury, was 'legally liable' to maintain here children whose custody had been awarded to their father and were supported in part by him.

The duty of parents to support their children is prescribed statutorily by a number of sections in the Civil Code.

In 1955 California adopted the Uniform Civil Liability for Support Act which provides:

(1) 'Every man shall support his wife, and his child; and his parent when in need' (Civ. Code § 242);

(2) 'Every woman shall support her child; and her husband and her parent when in need' (Civ. Code § 243);

(3) A child 'means a son or daughter under the age of 21 years' (Civ. Code § 241, subd. (d));

(4) The duties thus imposed are 'subject to' the provisions of §§ 196, 206 and, respectively, 175 and 176 of the Civil Code (Civ. Code §§ 242, 243); and (5) The child may enforce his 'right to support' against the parent by action in the Superior Court. (Civ. Code § 248.)

The act father provides:

'The rights herein created are in addition to and not in substitution for any other rights.' (Civ. Code § 251.)

Prior to adoption of the Uniform Civil Liability for Support Act, the courts of this state held it was the duty of both the father and mother to support their children (White v. White, 71 Cal.App.2d 390, 391, 163 P.2d 89; In re Carboni, 46 Cal.App.2d 605, 613, 116 P.2d 453; In re Keck, 100 Cal.App. 513, 514, 280 P. 387); the duty of the father was primary (Newell v. Newell, 146 Cal.App.2d 166, 178, 303 P.2d 839; Metson v. Metson, 56 Cal.App.2d 328, 333, 132 P.2d 513; Fagan v. Fagan, 43 Cal.App.2d 189, 198, 110 P.2d [245 Cal.App.2d 297] 520); and the duty of the mother was secondary. (Fox v. Industrial Acc. Comm., 194 Cal. 173, 178, 228 P. 38.)

In 1951, by statute, a child was given the right to maintain an action 'against the mother or father, or both,' to enforce their duty to provide for his support. (Civ. Code § 137.1.)

The duty of a parent to support a child is not limited to furnishing the necessities of life but includes also maintenance in accord with the latter's station in life and customary mode of living. (Bailey v. Superior Court, 215 Cal. 548, 555, 11 P.2d 865; Newell v. Newell, supra, 146 Cal.App.2d 166, 178, 303 P.2d 839; Wong v. Wong Hing Young, 80 Cal.App.2d 391, 395, 181 P.2d 741.) A similarly stated rule applies to the determination of the issue of dependency as a matter of fact in workmen's compensation cases. (Larsen v. Industrial Acc. Comm., 34 Cal.2d 772, 774, 215 P.2d 16; London Guarantee and Accident Co. v. Ind. Acc. Comm., 203 Cal. 12, 16, 263 P. 196; London Guar., etc., Co. v. Ind. Acc. Comm., 57 Cal.App.2d 616, 619, 135 P.2d 7.)

Confusion respecting the mutuality of parental duty to support a child came about in cases where custody had been awarded to one parent with no provision for support by the other, or with a provision limiting the extent of such support. (Gen. see Federal Mutual L. Ins. Co., v. Indus. Acc. Comm., supra, 195 Cal. 283, 286, 233 P. 335; Llewellyn Iron Works v. Ind. Acc. Comm., 191 Cal. 28, 30, 214 P. 846; Svoboda v. Superior Court, 190 Cal. 727, 728--729, 214 P. 440; Pacific Gold Dredging Co. v. Indus. Acc. Comm., supra, 184 Cal. 462, 464--465, 194 P. 1, 13 A.L.R. 725; R. Sherer & Co. v. Indus. Acc. Comm., 182 Cal. 488, 490, 188 P. 798; Lewis v. Lewis, 174 Cal. 336, 163 P. 42; Matter of McMullin, 164 Cal. 504, 129 P. 773; Davies v. Fisher, 34 Cal.App. 137, 166 P. 833.) However, it now is settled that where custody of a child is awarded to one parent the duty to support may be shifted or modified as between each of...