We are here called upon to determine if the minor children of Raymond Lee Barnes, deceased, were “dependents” so as to be entitled to the benefits of the Workmen’s Compensation Act.
Involved is an interpretation of §§ 59-10 — 12(j) (1) and 59 — 10—12(j) (6), N.M. S.A.1953, which read as follows:
“(j) The following persons, and only, shall be deemed dependents and entitled to compensation under the provi-sioris of this act.
1. A child under eighteen [18] years of age or incapable of self-support and unmarried, actually dependent upon the deceased.
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6. Questions as to who constitute dependents, and the extent of their dependency, shall be determined as of the date of the injury, * *
Appellants open their argument with a request that we determine the facts and not be bound by the findings of the trial court, citing Garry v. Atchison, Topeka and Santa Fe Railway Co.,
“From a consideration of the authorities cited, we deduce the following: Where all or substantially all of the evidence on a material issue is documentary or by deposition, the Supreme Court will examine and weigh it, and will review the record, giving some weight to the findings of the trial judge on such issue, and will not disturb the same upon conflicting evidence unless such findings are manifestly wrong or clearly opposed to the evidence.”
The opinion on second motion for rehearing of Commercial Warehouse Co. v. Hyder Brothers, Inc.,
“We áre impressed that in our review, we are as well situated as was the district court to make this determination and, under , the ' review procedure, outlined in Valdez v. Salazar,45 N.M. 1 ,107 P.2d 862 , we may; consider the findings of the small claims court and weigh the stipulated facts to determine whether the judgment was supported by the facts.”
This statement is followed by a reference to the statute providing for review of judgments of the small claims court and the stipulated facts. We then said:
“ * * * When this evidence is weighed with the findings of the trial court, we conclude that the trial court’s conclusion that the damage was caused by defendant’s negligence was not error.
“Having so concluded, the rule of Valdez v. Salazar, supra, requires a reversal of the district court and affirmance of the small claims court’s judgment insofar as the claim of intervenor is concerned.”
It should be amply clear that we have never countenanced a review of documentary evidence to the exclusion of the findings. None of the cases cited above have so indicated. To the contrary, we may only review the documentary evidence to determine whether it supports the findings, and. we will not disturb the findings “unless such findings are manifestly wrong or clearly, opposed to the evidence.” Valdez v. Salazar, supra.
As we understand plaintiff’s argument here, we are asked to examine the evidence and determine that the trial court erred when it concluded that plaintiffs ■Were' not actually dependent based upon finding 10 that decedent’s statements to his former wife “that he would start sending support payments for the children did not constitute a reasonable probability that he would perform, and no reasonable reliance could have been placed thereon * * and finding 14 that they “had no real expectation, hope or reasonable probability of future contribution to their support from their father. * * * ”
Principal reliance is placed on our holding in Merrill v. Penasco Lumber Co.,
“ * * * It seems to be well settled by authority that the existence of a marriage with consequent liability to support does not of itself prove actual dependency, and instances easily come to mind of married women who are not actually dependent upon their husbands for support. Many statutes create a presumption of dependency in favor of certain classes, but ours does not, following in this respect the original English act. But just as the existence of the marital status does not of itself prove dependency, so the lack of actual support by the husband does not of itself negative dependency. The failure to support is only one circumstance for consideration. The reasons for it, the length of its continuance, the mutual attitude and meáns of the parties, the probable resumption of duty, and other similar matters may have a distinct bearing on the subject. If dependency were determined only by the fact of con-' tribution to support, a wife and children might be dependent one week and cease to be the next according to the caprice of the husband and father. Such a theory lacks support from authority. * * * ”
In Merrill, supra, we quoted from In re Carroll,
In view of the prior history of non-support and its duration, together with decedent’s unfulfilled promises, and the further fact that the mother and stepfather had been and were providing support, and the general picture of decedent’s acts and conduct, we do not see how we could determine as a matter of law and contrary to the trial court’s findings, that the decedent’s minor children were “dependent” as defined in § 59 — 10—12(j), N.M.S.A.1953. We see nothing in Houston v. Lovington Storage Company,
It follows from what has been said that the judgment of the trial court holding that the minor children of decedent were not “dependents” and, accordingly, not entitled to recover under the workmen’s compensation act should be affirmed.
It is so ordered.