Snarr v. Carroll

• Decision Date: 15 January 1958
• Docket Number: No. 6276,6276
• Citation: 1958 NMSC 10,320 P.2d 736,63 N.M. 380
• Parties: Charles S. SNARR and Emma M. Snarr, Plaintiffs-Appellees, v. Claude M. CARROLL and Employers' Fire Insurance Company, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 736

320 P.2d 736

63 N.M. 380

Charles S. SNARR and Emma M. Snarr, Plaintiffs-Appellees, v. Claude M. CARROLL and Employers' Fire Insurance Company Defendants-Appellants.

No. 6276.

Supreme Court of New Mexico.

Jan. 15, 1958.

Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Albuquerque, for appellants.

Brown & Wood, Farmington, for appellees.

COMPTON, Justice.

The questions presented by this appeal are (a) whether under the provisions of the Workmen's Compensation Act the child of a deceased workman under 18 years is conclusively presumed to be an actual dependent, and (b) where actual dependency of the child is not established, may the partially dependent parents of the workman recover death benefits. The problem is one of construction.

The applicable statute is Sec. 59-10-12(j), NMSA, 1953 Comp., and is set forth in full.

'(j) The following persons, and they only, shall be deemed dependents and entitled to compensation under the provisions of this act.

'1. A child under eighteen (18) years of age or incapable of self-support and unmarried, actually dependent upon the deceased.

'2. The widow, only if living with the deceased at the time of his death, or legally entitled to be supported by him and actually dependent, including a divorced wife entitled to alimony and actually dependent.

'3. The widower only if incapable of self-support, and actually dependent, wholly or partially, upon the deceased at the time of the injury.

'4. A parent or grandparents only if actually dependent, wholly or partially, upon the deceased.

'5. A grandchild, brother or sister only if under eighteen (18) years of age, or incapable of self-support, and wholly dependent upon the deceased.

'The relation of dependency must exist at the time of the injury.

'6. Questions as to who constitute dependents, and the extent of their dependency, shall be determined as of the date of the injury, and their right to any death benefit shall cease upon the happening of any one of the following contingencies:

'I. Upon the marriage of the widow or widower.

'II. Upon a child reaching the age of eighteen (18) years, unless said child at such time is physically or mentally incapacitated from earnings, or upon a dependent child becoming self-supporting prior to attaining said age.

'III. Upon the death of any dependent.'

Appellees, parents of the deceased workman, brought this action to recover compensation as provided by the Act. Appellants denied the alleged dependency of appellees, and further, as an affirmative defense, alleged that the deceased left surviving him a child under the age of 18 years.

The trial court found that appellees were actually dependent upon the deceased, but partially so. The court also found that the workman left surviving him a child under the age of 18 years, but that the child was not actually dependent on the workman at the time of his death.

The court then concluded that since there was a failure of proof of actual dependency of the child, appellees were entitled to recover. Judgment was entered accordingly and appellants appeal. The findings are not challenged, leaving for determination questions of law only.

Appellants strongly insist that a child of a deceased workman under the age of 18 years is an actual dependent as a matter of law. We agree; proof that the deceased workman left surviving a child under the age of 18 years sufficiently establishes its dependency. Hamilton v. Prestridge, 47 N.M. 440, 144 P.2d 156; Sanchez v. Board of County Commissioners, 63 N.M. 85, 313 P.2d 1055; Neeley v. Union Potash & Chemical Co., 47 N.M. 100, 137 P.2d 312; Merrill v. Penasco Lbr. Co., 27 N.M. 632, 204 P. 72; Gonzales v. Chino Copper Co., 26 N.M. 228, 222 P. 903.

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