*1 Thus, holding our rule valid the rule. violates issue of fact be retried. removes judgment is reversed and the trial court is directed to judgment for defendants. enter Began, Friedman, J., J., concurred. rehearing petition 24, 1966, A for a was denied October hearing by Supreme
respondent’s petition for a Court Peters, J., Tobriner, J., denied November 1966. granted. opinion petition should Dist., Sept. 29, No. 8184. Fourth Div. One. [Civ. 1966.] Petitioners, al., DAVID et W. SMITH WORKMEN’S COMPENSATION BOARD, APPEALS HAROLD Respondents. al., et EUGENE SNOOK *2 Arnold Petersen Petitioners. S. Corten, Sarkisian, Edward A. Har- Everett A. Romaine E. Respondents. Donald Lieb for
per and C. of a COUGHLIN, J. seek annulment work Petitioners compensation in favor four minor children on award men ’s their The industrially caused mother. death account Commission, Industrial Accident now by the award was made Compensation Appeals Board, which as Workmen’s Imown The issue as the Commission. referred to herein will be resulting in death the children injury at the time of whether meaning totally dependent upon their within the mother were compensation of the workmen’s statute. Custody were mother and father divorced. The right awarded the latter with the minor children was reason- granted able The made no visitation former. order provision support. father, children lived their The with overnight stayed with but from time to time their mother longer. hearing sup- The the matter the children were referee found ported part part their mother; their annually $3,600 and, support; toward their latter contributed dependent upon they partially reason, for this were her. dependent upon the father was mother. not evidence, elementary requiring under rule on review supports acceptance thereof which the award version Aircraft, (Douglas Inc. justifies 425]), the conclusion that while 905 [306 living together the and father mother’s income
mother children; father, after used in to maintain the was provide separation, able them the necessities maintain them in standard able to life, but prior living separation; to which had been accustomed separation after contribution to the mother’s *3 amount standard; them that the of maintained as the was found referee. contribution Commission, relying petition reconsideration, the Upon prescribed by presumption Code, Labor sec- on the conclusive totally (b), found the children were subdivision tion accordingly. mother, an upon and made award dependent the 3501, subdivi- provisions Labor Pertinent of following conclusively pre- shall (b) declare: “The sion support upon a wholly dependent deceased sumed to be employee: age eighteen years (b) A under the of child ... living whom he is at the time of upon parent , the . . parent maintenance the injury parent for whose the or of being no surviv- injury, of there legally at the time liable ” parent. dependent presumption conclusive express statute, the By terms of this result an who died as a of a mother applies to children living with her at the time of injury if industrial for their at injury, if she was or dependent upon was not providing time, Acc. v. Industrial (Douglas their mother. Aircraft 340, 343 [149 24 Cal.2d the evidence in the case is whether primary issue finding of conclusion, implied in the Commission’s supports the legal dependency,1 that children the mother total resulting injury time of the ly liable for their at in her We conclude does. death. pre establishing which the conclusive facts to Evidence as law need sumption dependency attaches a matter of of total as a partial, total mat dependency, either not show actual Fund Indem. Acc. (Fireman’s Co. v. ter of fact. Douglas ; Co. v. Com., Cal.2d 942 705] Aircraft Com., supra, Federal Mut. Cal.2d 283, 289 Ins. 195 Cal. Liab. 335].)2 (b), pre substance, Labor dependency compen a total scribes definition of workmen’s wholly independent purposes in addition sation determining dependency used in its actual definition total otherwise, an existence as a matter of fact. Stated award of compensation under the statute on account of the death of an employee dependent a a is made to child total when the giving presumption exist, regardless of rise to the actual facts dependency. sufficiency A review of evidence finding upon pre a to sumption based sufficiency is restricted a consideration of the finding giving a the evidence to of facts rise to the granted presumption. Thus, facts, appli existence of such precluded showing is not cation any support actually did not receive from deceased (Douglas parent supra, Co. v. Aircraft portion 343) only required ; received of his Cal.2d (Federal Mut. Liab. Ins. In from that Co. v. Com., supra, 283, 289); was not dustrial Acc. entitled any support (Douglas from to receive the deceased Air 340, 343) Co. v. Industrial Acc. craft partial support surviving parent (Douglas from the received Indusrial 24 Cal.2d Aircraft finding every supportive finding upon implies 1 A ultimate fact inte”mc(liate including probative supported evidence, fact infer Corp. (Consolidated Steel v. Industrial 6 Cal.2d 369 201 ences. Department Beverage Bailey Control, Alcoholic *4 Clayton Anderson, Cal.App.2d 348, Cal.Rptr. 264]; Fries v. 351 [20 & 687, Cal.Rptr. Co., Cal.App.2d 336].) 681 190 [12 2 showing legal liability Also the rule of note is that a prerequisite compensation dependent to an award benefits to a 469, Mut. Liab. Ins. Co. v. 187 Cal. fact. 476 664].) P. [202 296 Industrial Acc. Liab. Mut. Ins. Co. v. Federal supported entirely the sur 290) ; was 195 (Southern v. Indus Cal. Edison Co. parent
viving or another 415]); 359 Cal.App. P. 92 trial Acc. [268 upon dependent his entire for Industrial Acc. (Douglas Co. v. parent or another Aircraft Cal. Edison Co. v. 340, 343; Southern supra, 24 Cal.2d par Cal.App. 355, 359); or Com., supra, 92 Dredging Indus (Pacific Gold supported himself. tially 1, 13 A.L.R. 467-468 trial [194 compensation awarded In ease at Commission bench (b) under Code, pursuant to Labor employee, at the time finding implied that the deceased maintain her children “legally liable” to injury, sup- their father and were awarded to custody had whose him. ported prescribed parents their children duty in the Code. statutorily by of sections a number Liability adopted the Uniform Civil In 1955 California Support provides: Act which wife, child; and his “Every his (1) man shall 242); (Civ. Code, parent when in need” his § support her (2) “Every child; woman shall and her hus- (Civ. Code, 243) ; when need” band and § daughter age a son or under the of 21 (3) A child “means (d)) years” (Civ. Code, 241, ; subd. § “subject imposed provi- thus to” the (4) The duties and, respectively, 175 and of sections sions (Civ. 242, 243); and Code §§ “right support” (5) against enforce (Civ. superior court. 248.) in the action § rights provides: “The further herein created are in The act rights.” to and not substitution other addition (Civ. 251.) Code, § Liability adoption Sup of the Uniform Civil Prior to duty was the port of this state held it of both Act, courts (White their children and mother to the father Carboni, Cal.App.2d 390, 89]; P.2d re White, [163 Keck, In re Cal.App.2d 605, 453]; P.2d Cal. [116 pri of the father was App. 387]); [280 Newell, 166, 178 (Newell v. mary Cal.App.2d 328, 333 Metson, 56 Metson v. Cal.App.2d 189, 198 Fagan Fagan, 43 513]
297 520]); duty secondary. (Fox and the of the mother was v. Com., 173,178 Industrial 194 38].) Acc. Cal. P. [228 right In 1951, statute, given a child was maintain to “against father, both,” action the mother or to enforce duty provide support. (Civ. Code, 137.1.) to for his § parent support of a to a child is not limited furnishing to the necessities of life but includes also main tenance in with the in accord latter’s station life and custo mary living. Superior (Bailey Court, 548, mode 215 v. Cal. ; supra, 555 Newell, Cal.App.2d P.2d Newell 146 v. [11 865] Wong 166, 178; Young, Cal.App.2d 391, v. 80 395 P.2d [181 741].) similarly applies A stated rule to determination of the issue of as matter of fact in workmen’s compensation (Larsen Industrial Com., eases. v. Acc. 34 Cal.2d 772, 16]; 774 London Guar. & Acc. Co. v. Indus [215 Guar, 12, trial 203 16 Com., 196]; Acc. P. London Cal. [263 Cal.App.2d Industrial Com., 616, etc. v. Acc. 57 Co. 619 [135 7].) respecting mutuality parental duty sup
Confusion to port custody a child came about cases where had been parent provision awarded one to no provision limiting other, support. with a the extent of such (Gen. see Federal Mut. Liab. Industrial Ins. v. Acc. Llewellyn supra, 283, 286; 195 Iron Works Cal. v. Industrial 846]; Superior 191 30 Cal. P. Svoboda v. [214 Dredg Court, 440]; 190 728-729 P. Cal. Gold [214 Pacific Com., supra, Co. v. Industrial Acc. 184 464-465; Cal. 182 Sherer & Co. v. R. Cal. Lewis, 42]; Lewis P. P. 798] [163 [188 McMullin, 164 773]; Matter Cal.. Davies v. [129 Cal.App. However, Fisher, 34 custody that where of a child is now is settled awarded to one support may parent duty to be shifted or modified as parent parents, but not as between each each of between (Federal Mut. Liab. Ins. Co. the child. Dredging Gold 283, 287; 195 Cal. Pacific 462, 466; Estate Gou Cal.Rptr. 260, 263 229, A.L.R.3d lart, 218 Clemmer, Cal.App. 567, Watkins Edison 303]; Southern Superior Cal.App. 355, 358; see also Svoboda v. supra, 92 727, 728.) Court, supra, 190 Cal. which of confusion One source custody entitled of a child must “The to
provides: give his circumstances. him and education suitable to legitimate and education which the father of If the him give the mother must assist inadequate, child is able to are ’’ ability. to the extent of rights obligations defined this code section sections the limitations contained authorizing custody proceedings, court, and 139 137.2 order either the child. Where child is awarded to the the effect of section mother, directing decree of court other parents, between absent wise, primary duty is to shift the from the father mother, the father and child it but as between does *6 duty support the the to the absolve former from latter. (Federal Com., supra, Industrial Acc. Mut. Liab. Ins. Co. v. Dredging 289; 195 Cal. Com., Gold Pacific supra, Watkins Clemmer, Cal. v. 465; In Cal.App. 567, 577; Southern Edison Cal. Com., supra, Cal.App. Where, 355, 358.) dustrial Acc. circumstances, custody given father, under similar the as sup duty the between port father and mother the of the former to primary latter continues to be and that of the continues secondary. In the event, however, to as between either parents and the child of the former is absolved of the neither duty (Ibid.) to the latter. prior adoption was to of the Uniform 1924, which In Support 137.1, Act our
Liability for in Fox v. Industrial Acc. 194 Cal. Court, Supreme dependency presumption provisions the 38], held total compensation did not statutes authorize workmen's employed the children of an dependency award to mother total injury resulting in industrial death where had sustained who living together; both em- father were were the mother earnings placed joint in a bank account ployed, and their them, did not live with but name; the children father's in the joint per earnings; month from their $35 the sum received and there was showing actually of this sum no un- earnings, or was the mother’s from came earnings. The children pay whole thereof from able to presumption upon the application of the conclusive urged support. legally liable ground their mother said: “It will serve no contention .response to this point, by the this since neither purpose to further discuss by voluntary contribution to this state nor law of statute the deceased minor did become support children being and such the fact legally maintenance, for their presumption dependency apply does not the conclusive (Fox Com., supra, her.” to 181.) supports position secondary duty This that the decision per legal se mother her child is not the of a to authorizing pre dependency
to invocation of the total hand, presumption sumption. On the other has applied in favor of a child of deceased father whose to secondary, the child because had been mother, actually the father awarded where had been partially partially supporting to been ordered Mut. Liab. Ins. Co. v. Industrial Acc. child. 283; Dredging Gold v. In Pacific Com.,supra, 462.) dustrial Acc. presumption of Labor The total necessary express its (b), by inference from 3501, subdivision apply every employed child of an provisions, does otherwise, intention of the section were If the would mother. simply by applying accomplished a sur be viving employee every deceased instance where dependent parent,” eliminating “no there was limiting application provisions its child who was liv parent or deceased for whose maintenance the injury. parent was liable at time of A deceased give be construed so as effect all statute should (Code Proc., County Weber parts. Civ. § its Barbara, All Santa *7 given (b), 3501, would parts by effect of section provision applying pre- of the accepting a construction in favor of a child “for whose maintenance the sumption injury” at time of legally liable which differ- was legal duty support of to between entiates legal liability duty under sup- that to current and the support Although duty constant, to is port the child. obligee only when the is in exists need of thereunder support. (Gen. obligor to see Bernard is able support and the Cal.App.2d 353, Metson v. Bernard, 79 v. Metson, 332.) 328, Nonfulfillment of a supra, activating secondary the need its duty constitutes primary counterpart. supports evidence at conclu In case bench support secondary duty the mother to her of sion addition by need to activated children was provide their father able to maintain
that which was them living of in the mode to which were accustomed; their provide support; by mother was able additional the mother virtue of these circumstances the liable for injury causing of her children at the time of death. legal liability No about the doubt mother’s would exist pursuant provisions if, proceedings, in the to the of Code, 196, sections 139 and the court had Civil ordered her to designated pay amount toward the of her children. legal obligation fact honored she her voluntarily, rather requiring than its enforcement does not order, contra- Llewellyn (See Iron dict its existence. Works v. Industrial Com., supra, Dredging 32-33; Gold Acc. Pacific Com., supra, Industrial Co. v. 468.) Similarly, the fact the father of the children contribut legal liability to their and the mother was partial rather support, appli than total does not foreclose dependency presumption. total cation Mut. Com., supra, Liab. Ins. Co. v. conclusion 290.) policy’’ This conforms to the “social ex provision pressed by the Code, of Labor section subdivi directing application (b), dependency pre sion sumption total favor of a child on account the death of his employed mother, though injury even at time causing death living supported by with and he was father. (Douglas v.Co. 24 Cal. Aircraft 340, 341; 2d Fireman’s Fund Indem. 942.) It is no concern determination of the issue in this legal liability predicated ease whether the mother was specific support prescribed upon duty her Code, Civil general secondary duty other statutes, under the enforcement which is authorized 137.1; her additional under the Liability Uniform Civil Support Act, which, by the terms thereof, to the provisions of event, section 196. either obligation injury enforceable existed time at the resulting in death and application this fact authorized dependency presumption. total award affirmed. J., Brown, concurred. *8 WHELAN, J. dissent. I (b) the Labor a Section of Code makes parent injury a at time of fatal
distinction between who a legally for the maintenance of child under “was age liable” years, parent 18 respondent not liable. and a so of grant- such in The denies distinction Commission petition for reconsideration of a referee’s award based a dependency. making upon finding partial its award a of upon finding dependency, of total the Commission based require (b) that Section 3501 does not stated: “Labor Code legal merely requires primary; for be liability. parents support their minor children have a “Both regardless custody a divorce decree.” which one has under of justification quoted lan- only in the finds its If the award in the theoretical base guage postulate Commission, it its of the has years age is of a child under that each of of such the maintenance . . liable” for “the meaning Labor subdivi- of child within legal support may find recognize the award (b). I that if sion because theory, it will not set aside Com- other be some explanation for sound faulty put have forth a mission
conclusion. that the four children of the deceased evidence clear The dependent upon totally fact1 and that not mother were living with the deceased mother at the children was none of dependency injury. finding of total there- The the time only upon subdivi- based fore can employment July in her 1964. She had been then 1 The died mother sought years. for an The children and obtained default two 4, 1963, interlocutory and from mother on June divorce decree judgment applied which entered on June obtained a final and interlocutory of the children to 1964. The decree awarded custody. express judgment father; No the final confirmed the award of provision made. The father and four chil children was usually together two two and house. mother had in a On weekends the dren lived apartment. overnight her one-bedroom There were the children boys boys, girls; girls than the and she had the more often two gifts them of shoes all four at the same time. mother made never clothing given clothing, which, exception with the some other toys bought them, girls, bought took for the children. She new during places entertainment, furnished their them to meals gifts made, per over Of visits her. the estimated value boys. girls, percent than 19 father never cent went to the less supporting for assistance the children did asked mother directly any. provide the nec able to and did basic receive He things essary things children, but not for the all gifts. having as a result of the mother’s used to (b) sion that declares *9 parent legally
when the deceased “was liable” for main- tenance. applicability of that presumption, under the factual involved, depend upon
situation here must one of the follow- ing propositions: (A) Every mother of a minor child is at all times and all circumstances the “legally liable” for of such maintenance child within meaning of section (b); (B) a mother not legally otherwise liable for of her minor child becomes by so liable gifts making responsible if to the child father considers financially gifts. himself unable to make such
Proposition
(A) Considered
proposition
This
obligation
is false unless the
aof mother to
support her
equal
minor child is
and coextensive with the
obligation.
father’s
Fox
v.
Acc.
194
173
38],
P.
held
[228
squarely
age
that the mother
years
of children under the
of 18
legally
support, although
not
liable for their
she was en-
custody equally
titled
surviving nondepen-
with their
living.
dent father with
she
whom had been
said,
The court
at
page
having
“It
held that
182:
been
the deceased
legally
minors,
not
meaning
for the maintenance
liable
of the
within the
(a) (2),
of section 14
it is clear that the conclusive
’’2
presumption
apply.
does not
Supreme
cases,
In other
Court has failed
find
that an
legally
employed
mother was
of her children
living
nondependent
with her and their
father, al
earnings
though
pooled
the mother’s
were
with those of her
family
for the
of the
husband
salary
because the father’s
(Douglas
was insufficient.
Co. v. Industrial
Aircraft
Com., 24
340
;
Acc.
Fireman’s
[149
Fund
702]
Co. v. Industrial
Indem.
Cal.2d 942
[149
Douglas,
said,
page
at
343: “Whether or
she was liable for their
of no consequence; the
Legislature
presumption
stated that the conclusive
applies
has
’'
the conditions
under either of
mentioned.
2 It
be assumed that
Fox v. Industrial 194 Cal. 38],
P.
the court believed that
[228
did not arise unless
only legally
maintenance,
the mother were not
they
liable for their
but
living
with her. The court did not decide whether the children
Japan
years
living
who had been at school
parents, basing
for several
with the
solely
ground
its decision
on the
the mother was not
meaning
liable for
within the
of the section.
primary
always
father has heretofore
Newell
support.
(Newell
(1956),
furnish
166,178 [
parents of such child married divorced, regardless are or and any any made in decree divorce action alimony relative to ’' support the the child. was 270, Code, Section Penal altered in only by the insertion of the words “or other reason whatsoever” place in the physical words “or reason unable infirmity” mental in quoted paragraphs the first of the by conforming the paragraph remainder of that to such altera- tion. pertinent far amendment, here, The 1923 made it ex- so obligation
press
only
the mother's
in
arose
case
inability
support,
father’s
furnish
which had
been ex-
plicit
original
in the
statute.
adopting
section 243,
Code,
Civil
the Legislature must
provisions
have
aware of the
Code,
Labor
3501,
section
(b). It is
Legislature
subdivision
aware
to be assumed that the
holding in
Fox
also of
v. Industrial
(Williams
supra,
It is not reasonable to therefore, that either the adoption section 243, or the amendment of squares legal Penal of a mother support with that of the for child father. father remains primarily for the of his children.
Proposition (B) Considered Proposition argument in (B) may encap- sulated as follows: a partial There as a matter of fact because unrequested, and voluntary unordered contri- of mother’s created a need for butions; such contributions their con- made furnished the father tinuance that inadequate proviso brought case within of section support and education which the Code, that “If the 196, give inadequate, legitimate is able to of a ability.”; him the extent of assist mother must making voluntary contributions, such mother, therefore, *12 306 parent legally a for the maintenance of liable such
became partial upon dependency In this fashion, children. based parlayed dependency. voluntary into a total contributions is I argument following validity of such doubt reasons: Com., Fox Industrial Acc. In by voluntary did not declared that the deceased mother become the minor children to the contribution maintenance; the matter to Com and it remanded finding fact the existence extent make a as to mission of partial dependency. for an partial, test award
Dependency, either total of a death benefit. in those matter law exists cases dependency as a Total spouse 3501 that presumption under section arises
where
employee.
upon
Both
dependent
a deceased
wholly
child is
partial
as a
dependency may exist
mat-
dependency and
total
fact.4
ter of
having
there
in fact without
Dependency
exist
sup
injured person
furnish
legal obligation upon the
any
dependent.5
port to
dependency
mean
does
absolute
for the
Dependency
life;
sufficient
contributions
work
necessities
man
the maintenance
to for
looked
living. (London
Guar. & Acc.
accustomed mode
dependent’s
12
Com.,
196];
203
P.
London
[263
v.Co.
Com., Cal.App.2d
57
616
Industrial Acc.
etc.
[135
Guar.
Com., 34
Larsen v. Industrial Acc.
[215
P.2d 7]
16].)
employee has
the deceased
furnished the
fact that
neces-
person
dependent
supplied only
held
and the
life
has
sities of
might
partial,
luxuries creates a
rather
termed
than a
what
dependency
fact.
such situation it is immaterial
total,
upon
dependency in fact of a minor child
a deceased father was
4 Total
dependency
certainly
in a case where
found
(Madera Sugar
(1922)
applicable.
Pine Co. v. Industrial Acc. Com.
P.
[208
Cal. 350
totally
following
dependent:
held
have been
decedent’s
5 The
sister
nephew (Peterson
Com.,
390]) ;
Policy Considerations possible of the insurance theory the amount paying a death the risk of having taken account of premium paid there whenever therefore should be benefit, such benefit dependent parent. It is for the and no minor children the re- rather than for policy Legislature make such existing nullification of by the to do so spondent Commission law. the award.
I annul would Sept. 29, Fifth Dist. No. 648. 1966.]
[Civ. OF ex PUBLIC rel. DEPARTMENT THE PEOPLE v. GIUMARRA Appellant, WORKS, Plaintiff Re CORPORATION, Defendant VINEYARDS spondent.