233 P. 335 | Cal. | 1925
The petitioner herein applies for a writ of review whereby it seeks to have a decision and award of the Industrial Accident Commission reviewed and annulled. The petitioner was and is the insurer of Stephens-Adamson Mfg. Company of Los Angeles, which was, at the time of his death, the employer of one Carl C. Nagel, whose daughter Charlotte C. Nagel, a minor, was the applicant for and was granted the award. The facts out of which the present application arose are practically undisputed and are these: Carl C. Nagel and his wife Nanette Nagel, who had been married in 1907, were living in the state of Colorado in 1916, having at that time a daughter seven years old. Nanette Nagel in that year sued her husband for divorce and after personal service upon the latter, and in due course, *285 obtained a decree of divorce based upon his misconduct, and whereby it was ordered that the sole care, custody, and control of the said minor child should be and was thereby awarded to the plaintiff, her mother, and that the defendant pay the sum of $25 monthly for the support and maintenance of said minor child until said minor child reached her majority. The plaintiff, after receiving said divorce, continued for some time to reside in the state of Colorado with her minor child, but in the year 1920 remarried and removed to Mexico, where she has since resided, placing her minor daughter at the time in the keeping of Mr. and Mrs. Loftus, the uncle and aunt of said minor, who lived in San Diego, and with whom Charlotte has since resided. Her father Carl C. Nagel disappeared at or about the time of the divorce and made no payments upon the obligation for the support of his minor daughter, who was maintained by her mother while living in Colorado, and by her aunt and mother after she came to reside in San Diego, up to the time when in 1923 the father reappeared and began visiting his daughter and contributing to her support. At that time the father was employed by Stephens-Adamson Mfg. Company in Los Angeles and so continued to be up to April 5, 1924, when he was killed while in such employ and in the course of his employment. The child at the time her father thus resumed his parental relations and obligations toward her was of the age of about fifteen years. She was attending school and the cost of her food, clothing, incidentals, and education was approximately $75 a month. The father from the time he began to visit his daughter began also paying various sums which were applied to her support and which, according to a fair interpretation of the testimony of Mrs. Loftus, amounted to $35 or $40 a month. He also brought or bought her on the occasion of his visits gifts of various kinds and took her out with him and gave her pleasure. The mother also during this time sent contributions toward the girl's support. While these conditions existed Nagel was killed while in the employ of the Stephens-Adamson Mfg. Company on April 5, 1924; and in due course an application for compensation was filed on behalf of his said daughter by her guardian, Mrs. Loftus, an award upon the basis of total dependency being applied for. The Commission, upon the hearing thereon, at which the foregoing facts were adduced, made *286 an award of $4,900, based upon the conclusive presumption of total dependency under the terms of section 14a of the Workmen's Compensation Act [Stats. 1919, p. 917], which reads in part as follows: "Sec. 14 (a) The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee. . . . (2) A child or children under the age of eighteen years, . . . upon the parent with whom he or they are living at the time of the injury of such parent, or for whose maintenance such parent was legally liable at the time of the injury, there being no surviving dependent parent."
The petitioner herein contends that the facts as above set forth furnish no sufficient basis for the application of the conclusive presumption of total dependency provided for in the foregoing section of the Workmen's Compensation Act. In making this contention it relies chiefly upon certain decisions of this court touching the legal liability of a father for the support of his minor child of whose custody he has been deprived by a decree of divorce in an action instituted against him by the mother of the child and who is by the decree therein awarded the custody of said child. These cases are Matter of McMullin,
In the case of Sherer v. Industrial Acc. Com.,
In the case of Pacific Gold Dredging Co. v. Industrial Acc.Com.,
In the case of Llewellyn Iron Works v. Industrial Acc.Com.,
In the case of Svoboda v. Superior Court,
The effect of the foregoing decisions, when applied to the facts of the proceeding before us is to give full support to the finding of the Commission that a case had been presented to which the provisions of section 14a of the Workmen's Compensation Act, creating a conclusive presumption of total dependency in favor of the minor child of the deceased employee of the Stephens-Adamson Mfg. Company, of which the petitioner herein was the insurer, could be given application. Whether such conclusion is based upon the proofs of the voluntary resumption on the part of the father of his parental relations and obligations to his child, or upon the legal liability for the support of his child imposed by the terms of the divorce decree, or upon the broader ground of the basic legal obligation imposed by law upon a father *290 to support his dependent child to the end that it shall not become a public charge, the award of the Commission upon either and all of these grounds can be sustained. The fact that the mother of the child, who had committed its custody to other relations and had remarried and was living in a foreign land and beyond the jurisdiction of our local court, was also contributing somewhat to the child's support is, we think, an entirely immaterial feature of the case.
The award is affirmed.
Waste, J., Shenk, J., Lennon, J., Seawell, J., Lawlor, J., and Myers, C.J., concurred.