Opinion
No. 40218
Decided January 25, 1967.
Workmen's compensation — Death benefits — Section 4123.59 (D) (2), Revised Code — Presumption of dependency — Purpose of — Duel in character — Not rebutted, when — Maximum award — Limit on award based on death of one employee only.
1. The presumption created by Section 4123.59 (D) (2), Revised Code, is intended to eliminate the necessity of proof of dependency in a claim based upon the death of either parent, is useful only for that purpose and is not of evidentiary value in disproving dependency.
2. The presumption created by Section 4123.59 (D) (2), Revised Code, is dual in character and prevails in the absence of evidence that such children were dependent in whole or in part on persons other than the parents, or evidence that such child or children were self-supporting in whole or in substantial part.
3. The presumption created by Section 4123.59 (D) (2), Revised Code, that children under the age of 16 years are wholly dependent for support upon the parents with whom they are living at the time of the death of such parents is not rebutted by evidence that each of the parents contributed to the support of the common household.
4. The maximum award allowed by Section 4123.59, Revised Code, is a limit only upon an award based upon the death of one covered employee. It is not a limit placed upon the total awards which may be made to dependent persons who suffer loss of support because of the death of more than one covered employee.
APPEAL from the Court of Appeals for Franklin County.
The relators, coguardians of the five minor children of Mary M. Myers, deceased, instituted an action originally in the Court of Appeals for Franklin County, in which they allege that the respondent is under a duty specially enjoined upon it by law to enter an order finding that such children were wholly dependent upon Mary M. Myers at the time of her death and to order payment of death benefits to the relators, as such coguardians, as provided in Section 4123.59(B), Revised Code.
Certain facts alleged in the petition are admitted in the answer. Other facts appear in the agreed statement of facts upon which the case was submitted or are apparent from the exhibits attached by the parties to the agreed statement. Among these facts are the following:
1. Gary C. Myers, Jr., and Mary M. Myers, parents of five children under 16 years of age, died on December 16, 1960, when the airplane in which they were riding crashed while enroute from Columbus, Ohio, to New York City.
2. Both parents were employees of Highlights for Children, Inc., and were in the course and scope of that employment at the time of their tragic accident.
3. Prior to the accident, the father's annual earnings of $26,000 and the mother's annual earnings of $10,000, derived from the common employer, were deposited in a joint checking account which was utilized for the support of the parents and children, all of whom were living together.
4. A claim was filed with the Bureau of Workmen's Compensation on April 3, 1961, for the loss sustained by the children on account of the death of their father and resulted in an allowance of a maximum award of $18,000.
5. A similar claim was filed on May 4, 1962, for the loss sustained by the children by reason of the death of their monther. This claim alleged that the "children received entire support from deceased employee and father of the children." The words, "deceased employee," referred of course to the children's mother.
6. This claim was denied by the commission on the ground of no dependency of the five minor children upon their mother.
7. Upon appeal to the Court of Common Pleas of Franklin County, pursuant to Section 4123.519, Revised Code, a jury was waived, and the cause was submitted to the court for decision on the merits. This submission was on an agreed statement of facts.
8. The Common Pleas Court (whose written opinion is attached to the agreed statement as an exhibit) found that the children, under that agreed statement of facts, were "dependents" of their mother within the meaning of Section 4123.59, Revised Code, at the time of her death and were entitled to participate in the Workmen's Compensation Fund.
9. There was no appeal from this order of the Common Pleas Court.
10. The Industrial Commission, on February 8, 1965, made the following order:
"This claim coming on for hearing before the Industrial Commission on the question of the extent of dependency of decedent's minor children pursuant to the judgment rendered by the Court of Common Pleas of Franklin County, Ohio, the commission finds that said minor children * * * were all partially dependent upon the decedent for support at the time of her death and it is ordered that each of said minor children be granted a death award for partial dependency in the amount of $1,000 * * *."
The Court of Appeals denied the writ. Its decision ( 5 Ohio App.2d 232) so to do was based upon its conclusion that it must presume, in the absence of a stipulation to the contrary, that evidence was adduced at the hearing of the Industrial Commission upon the extent of the dependency of the children which would justify that order. The cause, having originated in the Court of Appeals, is before this court on appeal as a matter of right.
Messrs. Wright, Harlor, Morris, Arnold Glander, Mr. Thomas E. Cavendish, Mr. Charles F. Glander and Mr. James H. Ledman, for appellants.
Mr. William B. Saxbe, attorney general, Mr. Donald M. Colasurd and Mr. William M. Culbert, for appellee.
Section 4123.59, Revised Code, as applicable here, provided in part:
"(A) In case an injury to an employee causes his death * * * benefits shall be in the amount and to the persons following:
"* * *
"(B) If there are wholly dependent persons at the time of the death * * *. The sum total of payments to persons wholly dependent at the time of such death shall be fifteen thousand dollars. * * * if the decedent's wholly dependent survivors include his spouse or any child under eighteen years of age, an additional amount of one thousand dollars for each child and for his spouse shall be added to said fifteen thousand dollars maximum award, up to a total additional sum of three thousand dollars.
"* * *
"(D) The following persons shall be presumed to be wholly dependent for their support upon a deceased employee:
"* * *
"(2) A child under the age of sixteen years * * * upon the parent s with whom he is living at the time of death of such parent * * *." (Emphasis added.)
Such a presumption established by a statute not designating it as conclusive is subject to rebuttal in the same manner as any other presumption. State, ex rel. Pivk, v. Indus. Comm., 130 Ohio St. 208, 212.
Quite clearly, the legislative intent in enacting this section of the Revised Code was to recognize that children of tender years living with their parents are ordinarily wholly dependent upon each of their parents and to eliminate the necessity of proving such dependency. The presumption, granted solely for the purpose of eliminating the necessity of proving factual dependency in one case, can not be used to disprove actual dependency in a completely different case. It was not so intended, and its use must be limited strictly to the purpose for which it was created.
To this effect, see Utah Fuel Co. v. Indus. Comm., 67 Utah 25, 245 P. 381, 45 A.L.R. 882, and annotation at page 894, where father and son met death as coemployees in a common accident. It was held that the statutory presumption and a finding of the commission based thereon that the wife-mother and children were wholly dependent upon the deceased husband-father for support did not bind them in a subsequent proceeding for compensation for the son's death.
In a most interesting case, Hodgson v. West Stanley Colliery, 1910 A.C. (Eng.) 229, a husband and two sons were killed in a common accident. The law gave to a widow the presumption that she was wholly dependent upon her husband. The facts were that all had lived together upon their combined earnings. It was held that the wife-mother and surviving children might be given the maximum award as wholly dependent upon the husband and might also receive awards in respect of the death of each of the two sons.
We conclude that the presumption created by the subject statute was intended to eliminate the necessity of proof of dependency in a case based upon the death of either parent; that it is useful only for that purpose; and that it is not rebuttable by evidence or admissions that each of the parents contributed to the support of the common household.
The presumption which arises under the foregoing language is dual in character in that it applies to each of the parents of children under 16 and prevails in the absence of evidence that such children were dependent in whole or in part on persons other than the parents, or evidence that such child or children were self-supporting in whole or in substantial part.
The $18,000 maximum award allowed by Section 4123.59, Revised Code, is a limit only upon an award based upon the loss of one covered employee, not a limit placed upon the total award which may be made to a person or a group of persons who suffer loss of support because of the death of several covered employees upon whom they were dependent.
We prefer to base our decision on the merits of this cause rather than on the procedural ground used by the intermediate appellate court, since we are persuaded that no evidence was adduced at the hearing before the commission to rebut the statutory presumption. Hence, to apply to the finding of the commission a presumption of regularity would accomplish an unnecessary injustice in this case.
We have difficulty in imagining what evidence might refute the presumption that these children, all under 16 years of age and living together and with their parents on the combined annual earnings of their parents, were not wholly dependent upon those parents.
It would be doubtful that income earned by children of such tender years would be substantial enough to render their support by such affluent parents partial rather than total.
The opinion of the Common Pleas Court, which is a stipulated fact in this case, and the record before the Industrial Commission, which was also stipulated in the court below, show an entire lack of factual dispute.
In the presence of such agreement by the parties, we are of the opinion that the children were wholly dependent upon their deceased mother, Mary M. Myers, at the time of her death, and that the commission's duty to grant the maximum award of $18,000 was mandatory. Therefore, the judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.