573 P.2d 1260 | Or. Ct. App. | 1978
This is an appeal from an apportionment of the proceeds from the settlement of a wrongful death action. The apportionment was pursuant to ORS 30.040 as it existed at the time of decedent’s death in 1973,
Decedent was killed on February 7, 1973, when a United States Navy aircraft crashed into the apartment house where he resided in Alameda, California. He was 24 years old, unmarried and childless. His mother, as personal representative of his estate, instituted a wrongful death action against the United States and recovered a $50,000 settlement. She then sought apportionment of the settlement proceeds. The trial court found that the mother was a dependent of the decedent, while the father had maintained only a very minimal relationship with him. Consequently, it awarded the mother the entire sum available for distribution to the beneficiaries.
Former ORS 30.020 provided that a personal representative may bring a wrongful death action "for the benefit of the surviving spouse and dependents and in case there is no surviving spouse or dependents, then for the benefit of the estate of the decedent.”
The trial court found that the mother depended on payments from decedent to support herself and her younger children. As an alternative ground of dependency, the mother contends that all parents are dependents of their children as a matter of law for purposes of former ORS 30.020, and that, unlike the father, her respective expectancy of dependency entitled her to the entire recovery under former ORS 30.040. We consider the latter contention first.
No Oregon case has defined "dependent” for purposes of former ORS 30.020. The mother’s argument for dependency as a matter of legal status is derived from Jones v. Jones, 270 Or 869, 530 P2d 34 (1974), and Goheen v. General Motors Corp., 263 Or 145, 502 P2d 223 (1972). In Goheen, the court stated that only members of decedent’s family could be dependents under former ORS 30.020. It did not hold, however,
The argument makes too much of too little. First, legislative history of the 1973 amendments is of dubious probative value in discerning the legislative intent in 1939 when it enacted former ORS 30.020.
We hold that the status of being a parent to the decedent does not by itself establish dependency under
Webster’s Third New International Dictionary defines "dependent” as "one relying on another for support.” This definition is consistent with the apparent purpose of former ORS 30.020 and 30.040 of compensating members of decedent’s family who are left needy because of the death of their source of support and with the contingent nature of a child’s legal obligation to support his or her parent. The expectancies of other family members are the subject of the probate code, and their interests are determined by the law of inheritance. Therefore, we conclude that dependency in the present context requires both a specified familial relationship and actual support in the nature of financial contributions or valuable services
At the time of his death in Alameda, California, decedent was enrolled in an automotive body repair course and was receiving tuition and subsistence
The record is ambiguous as to the financial situations of respondent and decedent. The mother, in her brief, estimates her annual income as "not more than $5,800.” Our review of the record suggests a slightly more modest figure.
Decedent’s financial contributions to his family were irregular and were not precisely recorded. In 1970 he received $3,000 from the United States as compensation for the destruction of tribal fishing gounds and gave $800 to his mother. While he was in Germany he authorized her to cash war bonds whose value does not appear in the record and to use the proceeds for family purposes. After his discharge, while he was living with his mother and his siblings, he bought his mother a $100 coat and made occasional payments to her of up to $200. After moving to California to attend school he sent his mother $5 or $10 on two or three different occasions, some or perhaps most of which was repayment of a loan. During the period after 1970, the father had very little contact with decedent or other members of the family.
Despite the close mother-son relationship that appears in the record and our reluctance to allow a father who abandoned his family
Dependency does not necessarily require total financial support by one family member of another. Partial support may suffice. There is no mathematical test for the requisite proportion of support. Rather, the test should be a circumstantial one under the peculiar facts of each case. The payments must be sufficiently regular and substantial to support an inference that the purported dependent relied on decedent’s contributions to maintain his or her standard of living. See Speiser, Recovery for Wrongful Death, § 3:34, 266-68 (2nd ed 1975). Decedent’s contributions to respondent in this case were too small and irregular to meet this standard.
Respondent urges that decedent also provided her with social and emotional support. As the eldest son in a family whose father was absent from the home, pursuant to the particular customs and culture of the Umatilla tribe, he served as the male head of the family and thereby gave important nonfinancial support to his mother. Such support, to which the mother does not attach pecuniary value, is not the kind of dependence for which former ORS 30.020 and 30.040 provide compensation. The severance by death of a close mother-son relationship may be emotionally painful, but the cost is not necessarily financial. The apportionment procedure applies to the termination by wrongful death of the dependent’s source of financial support or services of measurable value. Furthermore,
Since dependent died without a surviving spouse or dependents under former ORS 30.020, the proceeds from the settlement of the wrongful death action go to benefit his estate. He died intestate. Therefore, under ORS 112.045(2), his parents are to take equal shares of his net estate.
Reversed.
The 1973 amendments to ORS 30.020 and 30.040 apply "to decedents dying on or after January 1, 1974.” Oregon Laws 1973, ch 718, § 7.
Former ORS 30.020 provided:
"When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the decedent, for the benefit of the surviving spouse and dependents and in case there is no surviving spouse or dependents, then for the benefit of the estate of the decedent, may maintain an action agains the wrongdoer, if the*212 decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. Such action shall be commenced within three years after the occurrence of the injury causing the death of the decedent, and in every such action such damages may be awarded as, in all the circumstances of the case, may be just, and will reasonably and fairly compensate the spouse, dependents or estate for the actual pecuniary loss, if any, to such spouse, dependents or estate and for all reasonable expenses paid or incurred for funeral, burial, doctor, hospital or nursing services for the decedent.”
Former ORS 30.040 provided:
"If settlement, with or without action, is effected and there is more than one dependent, the amount to be distributed to the dependents shall be apportioned among them in accordance with their respective expectancies of dependency as determined by the probate court of appointment by order entered in the matter of the estate.”
Oregon Laws 1939, ch 466, § 1, p 916.
ORS 109.010 provides:
"Parents are bound to maintain their children who are poor and unable to work to maintain themselves; and children are bound to maintain their parents in like circumstances.”
See, Clement v. Cummings, 212 Or 161, 172, 317 P2d 579 (1957): "Dependence can unquestionably be based upon services which have a pecuniary value and which look toward maintenance.”
In the context of workers’ compensation, the Oregon Supreme Court has held:
"* * * In order for relatives to be dependents of an unmarried decedent they must be dependent in fact on his contributions in order to continue to live in comfort according to the manner of living of people in their class and condition of life * * Paul et al. v. Industrial Acc. Com., 127 Or 599, 604, 272 P 267, 273 P 337 (1928).
Appellant’s second assignment of error challenges the' admissibility of evidence of the manner in which the father treated his family before the parents separated in 1969. Our disposition of the case makes it unnecessary to consider this contention.