Opinion
Hearing Granted by Supreme Court Nov. 29, 1927.
Proceeding under the Workmen’s Compensation, Insurance and Safety Act by John Murray, claimant, by his guardian ad litem and trustee, Frank X. Murray, for the death of the claimant’s son, opposed by the London Guarantee & Accident Company, Limited, insurer. The Industrial Accident Commission of California granted an award, and claimant brings certiorari. Award annulled.
COUNSEL
Haas & Dunnigan, H. E. Forster, and H. C. Johnston, all of Los Angeles, for petitioner.
G. C. Faulkner, of San Francisco, for respondents.
OPINION
HOUSER, J.
In this proceeding petitioner seeks to have reviewed by this court an order of award of compensation made by the respondent Industrial Accident Commission to one John Murray, on account of an injury received by Ralph E. Murray in the course of his employment, which injury resulted in the death of the employee. The petitioner here was the insurer of the employer and John Murray, the beneficiary under the award made by the respondent commission, is the father of the employee.
The only questions suggested by petitioner relate to whether the evidence adduced before the respondent commission was sufficient to establish, first, that the father was a dependent of the son; secondly, that the son devoted any part of his earnings to the use of the father; and, thirdly, that the money, if any, furnished by the son to the father, was actually used by the father for his maintenance and support.
Without attempting to set forth herein the evidence received at the hearing before the respondent commission, it may be stated that from the evidence it substantially appeared either directly or inferentially that for several years preceding the death of the employee his father had been totally incapacitated so far as performing any work was concerned; that, although he had an estate of approximately $5,500, consisting of interest-bearing notes and securities, there was no cash on hand; that the father led a miserly life, was obsessed of the idea that he had no money or property; and as a matter of fact (arising from such obsession), that he actually required financial assistance for his support; that commencing at about the time when the father became incapacitated for work, and continuously thereafter until the date of the death of the employee, the son sent to his father the sum of $25 per month.
Although the greater part of the evidence, especially that relating to the contributions made by the son to the father, depended to a large extent upon hearsay evidence, in view of the provisions of section 60(a) of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1917, p. 831), and the construction placed thereon by the Supreme Court of this state in the case of State Compensation Insurance Fund v. Industrial Accident Commission, 195 Cal. 174, 181, 182, 231 P. 996, and cases therein cited, to the effect that, in a proceeding before the Industrial Accident Commission for adjustment of compensation, hearsay evidence may be sufficient to establish any fact at issue, in the instant case it follows that although ordinarily speaking the evidence upon which the respondent commission acted in the premises appeared to be somewhat unsatisfactory and perhaps lacking both in quantity and quality, nevertheless, it was legally sufficient, if believed by the respondent commission, to support a conclusion that the son contributed the sum of $25 per month to the use of his father, and that such money was actually used by the father toward his maintenance and support. Such conclusion, however, does not reach the vital fact as to whether the father was actually a dependent of the son at the time of the son’s death. The finding by the respondent commission was to the effect that the father was "partially dependent"; and the question to be determined is whether there was any substantial evidence by which such finding may be justified. It will be noted that the evidence showed that, although the father led a miserly life, he had an estate of $5,500, which consisted of interest-bearing securities; that because of the fact that he was incapacitated for work, and that he did not realize that he had such property, he believed himself to be dependent for support upon the son, who sent him $25 per month, and which sum was used by the father for his maintenance. But let it be supposed that while the father was incapacitated for work and that, so far as he was personally concerned, he believed himself dependent, nevertheless, as a matter of fact, he was worth $1,000,000: Could it be said that, considering the fact that the son sent the father $25 per month which was used by the father for his support, a finding of partial dependency of the father would be justified? If not, why in the existing circumstances of this matter should such a finding be held valid? Even assuming that the interest only on the $5,500 estate of the father were to be used for his support, at the ordinary interest rate of 7 per cent. per annum it would amount to more per month than the father was receiving from the son. But no reason is apparent why the principal of the sum should be held intact, or why, if necessary, a part of it should not be used for the support of the father. True, by successive demands upon the principal, it would eventually become exhausted; but we are not concerned with what might happen in the future. Section 14 of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1917, p. 831), after providing for certain cases, contains the following provision:
"(b) In all other cases, questions of entire or partial dependency and questions as to who constitute dependents and the extent of their dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury of the employee."
It thus appears that our only interest with reference to the dependency of the father is what the conditions were at the time of the death of the employee. If the father was not then a dependent of the son, the fact that within a year, or within any other given time, the father might become such dependent, is neither of controlling force nor material to the inquiry; nor may a correct conclusion of the question of dependency be affected by the belief of the father in the premises, or by the possibility of the fact that the son was unintentionally deceived in the matter. The determination of the question must necessarily rest upon the facts; and those facts are that at the time of the death of the son the father at least did not require financial assistance for his support.
No evidence having been introduced before the respondent commission in support of the finding to the effect that the father was "partially dependent" upon the son, but the evidence appearing to the contrary, it follows that the award should be annulled. It is so ordered.
We concur: CONREY, P. J.; YORK, J.