255 P. 764 | Cal. Ct. App. | 1927
Certiorari to review the lawfulness of an award made by the Industrial Accident Commission. The pleading contains the usual recitals to the effect that petitioner is engaged in issuing employers' liability and workmen's compensation insurance and that it is the insurance carrier for the Kaiser Paving Company. It then alleges that an employee of the insured company met with an accident resulting in death, for which an award was made by the Industrial Accident Commission. It is claimed that in making such award the Commission acted in excess of its power or jurisdiction; that the evidence does not justify or support the findings or decision; that it is unreasonable, *416 and unless the same is set aside, petitioner will be compelled to pay the same and thus be deprived of its property without due process of law, there being no appeal from such decision.
It appears from the record that one Edward Thatcher, a minor, of the age of eighteen years, was employed by the Kaiser Paving Company of Vallejo, as a time-checker. His duties consisted in checking employees' working time, for pay-roll records. On August 17, 1925, while riding on the steps of a truck, he was jolted off, the truck running over him, crushing his chest and causing immediate death. Deceased left surviving him his mother, a half-brother who was a minor, and Henry H. Kinsey and Harriet E. Kinsey, his grandparents, all of whom were partially dependent upon him for support. The Commission found that the annual rate of contribution by deceased to their support was the sum of $735.84, entitling said dependents to a death benefit in the sum of $2,207.52, payable in weekly installments of $16.67, beginning as of August 18, 1925. It further found that claimants were entitled to a further award of $150, burial expenses. The weekly payments were based upon wages of $4.50 a day for employment of six days a week. It was stipulated that the injury arose out of and in the course of employment. It is not disputed that the deceased contributed partially to the support of all the members of his family, except his stepfather, who was the main provider. It is insisted, however, that in fixing the rate of compensation the Commission included certain items as contributions which the evidence shows were not in fact such, and should, therefore, not have been considered in ascertaining the extent of the dependency. Such of the facts as are necessary for a discussion of the issues presented show that one Mae Woland married her present husband in the year 1915. The deceased was a child by a former marriage. A few months prior to his death Henry H. Kinsey and Harriet E. Kinsey, the aged parents of Mrs. Woland, came to live with her. They were without funds and had no means of support. The Wolands were themselves poor and it was necessary for the son to render such assistance as he was able. About a year prior to his death he was attending part-time high school and devoting the remainder of his time to such work as he could procure. He sold *417 papers and at times drove a truck. The mother had purchased a lot outside the city limits of Vallejo, and for a time she and the family lived in a tent on the premises. The tent being inadequate for the family needs, the husband undertook to erect a structure upon the lot. At the time of the death of her son, lack of funds had prevented its completion. The scantlings on the inside were exposed and the outside of the building was unfinished, being covered with tar paper. The family, however, moved into the building, making the best of the situation. They owned some chickens and cows, but derived small benefits therefrom. Considering the distance from the town, it was necessary for them to have some means of transportation in going to and from the city to provide for their various wants, and they owned an automobile which was used for this purpose. Under these circumstances the deceased started to render such assistance as he could. He succeeded in procuring the employment which resulted in his death.
The Commission, in fixing the rate of contribution to his dependents, took the first period of employment from July 20th to July 31st, inclusive, and found the earnings of the employee to be the sum of $29, exclusive of board and room. Of this sum the employee had drawn $5 for his own personal use, making no contribution therefrom to any of his dependents. On July 31st he received the balance of $24, and out of this sum he gave his mother $12.50 in cash and bought a tire for the automobile costing the sum of $19.90. For this period, then, if the cost of the tire be included, he contributed the sum of $23.40, which is 80.69 per cent of the total amount earned. The balance of the $5.60 he retained for his own personal use. In the next period of employment from August 1st to August 15th, inclusive, he earned $47 net above board and room. During this period, on August 8th, he drew advance wages of $10. Out of this sum he gave his mother $7.50 in cash and he purchased oil and gas for the automobile amounting to the sum of $4.90. On August 15th he had $37 balance in wages coming to him at the end of the day's work. On the following day he requested payment of this sum from his employer, expressing his intention of taking it to his mother. His request was refused and he was informed that the company had concluded to make payments thereafter on *418
the regular pay-days only, which were fixed on the 5th and 20th of each month. He thereupon left the office for his home and on his arrival he informed his mother of his effort to procure the money and the refusal of the company to pay. The following day he met his death in the manner above indicated. The Commission, in fixing the rate of his contributions, concluded it was reasonable to assume, notwithstanding the evidence that the deceased intended to contribute the entire balance of $37 due him to his mother, that he would need for his own personal use a portion thereof. It found that as it was established that deceased had contributed $80.69 per cent of his wages from the first period of his employment that it would be reasonable to assume that his contributions would be limited to this percentage. For this reason the Commission took 80.69 per cent of his total earnings of $47 for the second period of employment, which amounts to $37.92, to which was added $23.40, the amount contributed from the first period, making $61.32 as the total monthly amount contributed as fixing the annual rate. It is petitioner's contention that the amount expended by the deceased for oil, gasoline, and the tire should not have been considered by the Commission in fixing the annual rate or the extent of contribution. [1] It likewise contends that the Commission erred in taking into consideration the amount of wages due deceased and remaining unpaid, and which were not received by the mother until after the death of the employee. Under this contention it is claimed that an intention to contribute can form no basis in fixing an annual rate of contribution; that the evidence should be confined solely to the actual money so devoted. This contention requires a construction of the provisions of the Workmen's Compensation Act relating to the subject. These provisions are to be found in chapter 586, Laws of 1917, as amended in 1925 (Stats. 1925, p. 643). They read as follows: "In case the deceased employee leaves no person wholly dependent upon him for support, but one or more persons partially dependent therefor, the said dependents shall be allowed the reasonable expenses of his burial, not exceed one hundred and fifty dollars, and, in addition thereto, a death benefit which shall amount to three times the annual amount devoted by the deceased to the support of the person or persons so partially dependent," etc. Section *419
14 (b) provides that the question of entire or partial dependency and the question as to what constitutes dependents, together with the extent of dependency, shall be determined in accordance with the fact, as the fact may be at the time of the injury of the employee. Our attention is directed to the language of the statute, which provides "that the death benefit amounting to three times the annual amount devoted by the deceased to thesupport," etc., and dependency "shall be determined in accordance with the fact at the time of the injury," and it is urged that as the amount due the employee at the time of his death had not been so devoted at such time, it should not have been considered by the Commission in fixing the rate. We do not consider there is any merit in this contention. The narrow construction contended for would, if adopted, in many cases defeat the plain intent of the law. In Spreckels v. IndustrialAcc. Com.,
The statutes which the courts were considering in the cases cited were in all respects similar to ours. We conclude upon the subject that all the facts and circumstances, together with the reasonable inferences to be drawn therefrom, were sufficient to justify the Commission in its conclusion as to the extent of the contributions made by the deceased to his dependents. [4] We are of the further opinion that the purchase by the deceased of the supplies for the automobile, considering the uses to which the machine was put, was as much a contribution as though the cost of the same had been given directly to the mother and by her expended for the necessary articles. The amount was devoted to the use of the dependents.
The award is affirmed.
Knight, J., and Cashin, J., concurred.
An application by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 16, 1927. *422