COBORN v. INDUSTRIAL ACCIDENT COMMISSION (1947)

Petitioner as the sole dependent of decedent employee, Allen G. Coborn, who was killed as the result of an accident arising out of and in the course of his employment, seeks the review and annulment of an award to her as the said employee's partial dependent, she claiming total dependency and as a consequence entitled to a higher award.

She here urges that the findings of fact and award of the Industrial Accident Commission are unlawful because (1) the commission acted without or in excess of its jurisdiction in determining that she was partially dependent; and (2) the award is not supported by the evidence.

It appears from the record herein that the applicant is the mother of the deceased employee and is 61 years of age; that she has worked nearly all of her adult life, her husband having died in 1908; that for the past several years she has lived alone in a small apartment for which she pays $25 per month rent; that prior to V-J Day, August 14, 1945, she worked at the Norris Stamping & Manufacturing Company, earning about $40 per week; that when the war ended she was discharged from that position and had $1,000 in the bank; that from August, 1945, to April 23, 1946, applicant was unemployed and that during that period she lived on the money her son gave her and also collected and used $460 unemployment insurance; that she had no other income until after April 23, 1946, when she went to work for the Quality Cafeteria as a food server; that she quit this position on the day of her son's death, to-wit: July 13, 1946, at which time she still had a balance of $235 in the bank from her war work earnings, and had set aside $209 from her cafeteria wages.

Said applicant testified that her son gave her on an average of $70 per month, but that the amount varied; that her son earned more than $500 per month; that her house expenses, including doctor's bills and medicine, but excluding clothing, ‘runs me about $130 a month’; that during the period of August 14, 1945, to April 24, 1946, whenever her son came to the house ‘he always left me money’. In answer to the question ‘Why did you go to work in April, 1946?’ applicant stated: ‘The reason I went to work is because he (her son) was selling his car to put me in the hospital. He had a standing offer from $1200 to $1400 for the car and he was going to sell that. * * * I went to work. I wanted a new mattress and some pillows and to buy my gowns, slippers and kimonas and things I needed for the hospital. I thought I could help out that way. A. What did you do with the money that you earned at your work at Quality Cafeteria? A. I saved that. My son did not know I was working up until a month before he died’; that she saved $208 or $209 from her earnings; that her son did not want her to work; ‘He told me he didn't want me to work; that I wasn't able to work; that he would take care of me. * * * I only intended to work there (cafeteria) long enough to get the money for the things I wanted to buy for my operation * * *. I intended to quit work before the first of August.’

At the conclusion of the hearing, the Referee made his report as follows:

‘The facts in this case indicate that the applicant herein is totally dependent upon her son, unless applicant's employment from April 25, or a few days before, to and including the date of injury precluded her from being a total dependent. During that period of time, applicant earned a total of $230.17 net. Her gross earnings were $288.62. A perusal of the payroll report would show that applicant's work was steady, although the amount earned varied.

‘Appellant's testimony indicated that she went to work in April as a temporary matter to obtain money to buy a new mattress, gown, slippers, etc., that she would need for hospitalization which she planned; that she had been in ill health for about nine months, and that she had made up her mind around April that she would need surgery; that she had planned to quit work very soon because she had almost enough money to obtain the things she needed, and because she almost fainted on the job the week before. However, during the actual employment of the applicant, the deceased was injured and killed. * * * The Referee feels that in this particular case, the amount of the earnings (of applicant) were consequential, and in fact were going toward the keeping up of a standard of living above that which the son provided. * * * and that applicant's dependency is partial only. Her testimony would indicate that she received an average of $70.00 per month from the deceased.’

The wife, and children under 18 years or older, but physically or mentally incapacitated from earning, are conclusively presumed to be wholly dependent for support upon a deceased employee. Sec. 3501, Labor Code. ‘In all other cases, questions of entire or partial dependency and questions as to who are dependents and the extent of their dependency shall be determined in accordance with the facts as they exist at the time of the injury of the employee.’ Sec. 3502, Labor Code.

As stated in 1 Workmen's Compensation by Campbell at page 767, section 863: ‘Dependency is a present, existing relation between two persons where the one is sustained by, or relies on, the aid of the other for his means of living. This does not mean absolute dependency for the necessities of life, but rather that the dependent looks to and relies upon the contributions of the injured employee in whole or in part as a means of supporting and maintaining such dependent in accordance with his accustomed mode of life.’

‘It is but a truism to say that total dependency exists where the applicants subsist entirely on the earnings of the deceased employee, but in applying this rule courts will not deprive applicants of the rights accorded total dependents, when otherwise entitled thereto, merely because of minor considerations or benefits which do not substantially affect or modify the status of the applicants toward the deceased employee. Bloomington-Bedford Stone Co. v. Phillips, 65 Ind.App. 189, 116 N.E. 850.’ Peterson v. Industrial Accident Comm., 188 15, 18, 204 P. 390, 391.

It was established by uncontradicted evidence that the applicant herein ‘went to work in April as a temporary matter to obtain money’ for a specific purpose, i.e., her contemplated operation and hospitalization; that she saved $209 for such purpose out of a net of $233 which she earned in such temporary employment; that she was then 61 years of age and had been in ill health for a period of some months; that her son, the deceased employee, had been contributing an average of $70 per month to her support ever since V-J Day in August of 1945, and that he had expressed his desire to take care of her, had told her not to work any more, that he would give her as much as she needed. From this it would appear that a case of total dependency has been proved and that the findings and award of the Commission that appellant was partially dependent upon the deceased employee are not supported by the evidence.

The factual situation in London Guarantee, etc., Co. v. Industrial Accident Comm., 57 Cal.App.2d 616, 618, 135 P. 2d 7, 8, cited in support of the award herein is clearly distinguishable from that of the instant case. There the dependent was 18 years of age, was permanently employed earning $80 per month which she expended upon herself alone for clothing, meals taken outside the home, ‘carfare, taxifare, cosmetics and amusements, including dancing, bowling and ice-skating.’ In other words, she was young, in good health and had every prospect of an increase in her earning power, and as stated by the court: ‘Was maintaining a standard of living which required the contributions of both the deceased and herself.’

In the instant case, the applicant is advanced in years and in ill health. Moreover, she was maintained by her son from the time she quit working at the end of the war until his death, and the money which she earned while working at the Cafeteria from April 23 to July 13, 1946, was never spent at all but was set apart and saved for a specific purpose. As a result, applicant's standard of living was not changed in any respect by this temporary employment in that she was subsisting almost entirely on the contributions received from the earnings of her son.

For the reasons stated, the award of partial dependency is annulled, and the cause is remanded to the respondent Commission which is hereby directed to find that petitioner was totally dependent upon deceased and to enter an award on that basis.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concur.