Opinion
No. 44,921
Opinion filed September 18, 1967.
SYLLABUS BY THE COURT
1. WORKMEN'S COMPENSATION — Time Dependency Determined. In a workmen's compensation case the question of dependency is to be determined as of the date of the accidental injury.
2. SAME — Degree of Dependency — Question of Fact. The degree of dependency in a workmen's compensation case is a question of fact and a finding with respect thereto will not be disturbed on appellate review when there is any evidence to support it.
Appeal from Wyandotte district court, division No. 1; O.Q. CLAFLIN, III, judge. Opinion filed September 18, 1967. Affirmed.
George E. McCullough, of Topeka, argued the cause and W.L. Parker, Jr., Robert B. Wareheim, Reginald LaBunker and James L. Rose, all of Topeka, and I.F. Bradley of Kansas City, were with him on the brief for the appellant.
George E. Mallon, of Kansas City, argued the cause and J. Milton Sullivant, Lewis C. Smith, Gerald L. Rushfelt, Clifford T. Mueller and Ralph D. Lamar, all of Kansas City, were with him on the brief for the appellees.
The opinion of the court was delivered by
This is a workmen's compensation case.
The only question presented is whether on the date of the workman's accidental fatal injury his mother — the claimant — was partially dependent upon him for support.
The district court held that she was not — and claimant mother has appealed.
Highly summarized — the record shows the following:
The workman — hereafter referred to as the son — sustained an accidental fatal injury on June 25, 1965. He was unmarried and lived in Kansas City. His mother lived in Bonner Springs with her husband — who was the son's stepfather — and their several children. The mother's husband had been unemployed for several years, and for some time the son had given money to his mother to "help out on the grocery bill." He also had permitted her to charge groceries to his account at a local store.
On March 15, 1965, the son obtained a job for his stepfather which paid $49.00 per week. His mother, in the meantime, had been earning $30.00 per week. The son's earnings were $59.00 per week. Therefore, as of June 25, when the son sustained his fatal injury, his mother and her husband were earning $79.00 per week.
The compensation examiner found against claimant. The director approved that finding. After reviewing the matter, the district court indicated by a letter to counsel that had the son died prior to March 15 — the date the stepfather got a job — it would have been obliged to rule favorably on the mother's claim of partial dependency — but that subsequent to March 15 any money given by the son to his mother could be classed only as "filial beneficence" — and denied the claim. The journal entry of judgment specifically recited that the son left no one wholly or partially dependent upon him for support or maintenance.
In pressing her appeal from that ruling counsel for claimant mother concede that dependency is a question of fact and that a finding will not be disturbed when supported by evidence ( Peters v. Peters, 177 Kan. 100, Syl. 2, 276 P.2d 302; Lees, Administrator v. White, 197 Kan. 118, 415 P.2d 272), and that dependency is to be determined as of the date of the accidental injury (K.S.A. 44-508 ( j), 44-510 (2) ( c); Dean v. Hodges Bros., 170 Kan. 333, 336, 224 P.2d 1028). They argue, however, that the court erred in finding that the situation was changed when the stepfather became employed — and, such finding being based on an erroneous conclusion of law — is therefore reviewable.
We think the contention is without merit. Regardless of the comment by the trial court when counsel were advised of its decision — the fact remains that the only question in this case is whether on June 25 — the date of the injury — the mother was partially dependent upon her son for support. As of that date — and for over three months prior thereto — the combined earnings of the mother and her husband were $79.00 per week. Counsel for the mother state there is no evidence to indicate that she ever received any support from her husband even after he went to work. There is no occasion here to discuss the moral and legal aspects of the duty of a husband to support his wife and family.
In Peters v. Peters, above, it was held —
"The degree of dependency in a workmen's compensation case is a question of fact and findings with respect thereto will not be disturbed on appellate review when there is any evidence to support them." (Syl. 2)
The finding here of no dependency is fully supported by the evidence and the judgment is affirmed.