Tabor v. Industrial Accident Fund

247 P.2d 472, 126 Mont. 240, 1952 Mont. LEXIS 35

• Court: Montana Supreme Court
• Decided: August 21, 1952
• Docket: 9157
• Status: Published

Opinions

MR. JUSTICE ANGSTMAN:

John Leo Tabor lost his life while employed by the F. & S. Trucking Company of Butte. At the time of his death he was 17 years and 9 months of age. His death was caused by an accident arising out of and in the course of his employment.

His employer was operating under plan 3 of the Workmen’s Compensation Act. R. C. M. 1947, secs. 92-1101 — 92-1123.

At the time of his death John Leo was living with his parents at 1752 Oregon Avenue, Butte.

Plaintiffs, who are his father and mother, filed claim for compensation with the industrial accident board as major dependents.

Hearing was had before the board and the board rejected the claim.

Plaintiffs appealed to the district court and the court- allowed the claim.

The facts are that plaintiff John Edward Tabor at the time of the death of John Leo Tabor was earning $500 per month plus his meals.

When John Edward Tabor accepted his employment as chef at the Finlen Hotel in Butte, he arranged for the employment of John Leo through Mr. Finlen who is part owner of the F. & S. Trucking Company as well as owner of the Finlen Hotel. Deceased had worked 9 days before he was killed and was receiving $12 per day. The Tabors had four other minor children besides the deceased. When John Leo Tabor accepted his employment he agreed to pay to his parents the sum of $40 per week. The board found, “That decedent had agreed to pay over to his parents, claimants herein, the sum of $40.00 per week, from his earnings.”

But the board found that claimants’ financial condition was such that the income earned by John Edward Tabor was ample to provide their accustomed mode of living without assistance from decedent, and denied their claim. The court on the same facts reached a contrary conclusion and awarded the maximum compensation of $22 per week for 500 weeks.

Since the facts are not in dispute the only question is one of law. Ross v. Industrial Accident Board, 106 Mont. 486, 80 Pac. (2d) 362; Edwards v. Butte & Superior Mining Co., 83 Mont. 122, 270 Pac. 634. In other words the single question is, do the undisputed facts show that plaintiffs are major dependents within the meaning of our statute, sec. 92-414, R. C. M. 1947.

The Workmen’s Compensation Act must be liberally con- strued to accomplish its intended purpose, and construed in favor of the injured workman and his dependents. Koppang v. Sevier, 101 Mont. 234, 53 Pac. (2d) 455; Tweedie v. Industrial Accident Board, 101 Mont. 256, 53 Pac. (2d) 1145; Grief v. Industrial Accident Fund, 108 Mont. 519, 93 Pac. (2d) 961; Geary v. Anaconda Copper Mining Co., 120 Mont. 485, 188 Pac. (2d) 185; Edwards v. Butte & Superior Mining Co., supra.

‘ The majority of the courts throughout the country give a liberal interpretation to the meaning of the word “dependent” as used in Workmen’s Compensation Acts. The rule is stated in 58 Am. Jur., Workmen’s Compensation, see. 163, p. 686, as follows: “* * * in a majority of jurisdictions the view seems to have been accepted that dependency within the terms of the statute does not mean absolute dependency for the necessities of life, but rather that the applicant looked to and relied on the contributions of the workman, in whole or in part, as a means of support and maintenance in accordance with his or her social position and accustomed mode of life. A person may be a dependent, according to this view, although able to maintain himself without any assistance from the decedent. Even though the person furnishing the support has a smaller income than the alleged dependent, this will not necessarily prevent the existence of a condition of dependency. The test is not in a comparison between the relative ability of the contributor and the alleged dependent, but in the latter’s reliance upon the former for maintenance, in whole or in part.”

Since decedent had agreed to contribute $40 per week to his parents, they were fully and reasonably justified in looking to and relying on these contributions as a means of support and constitutes them dependents within the majority view above stated. We have adopted the majority view in this state. Ross v. Industrial Accident Board, supra.

Nor is the result changed by the circumstance that decedent had worked but a few days before he was killed and actually had made no contribution before his death. Edwards v. Butte &. Superior Mining Co., supra; Ross v. Industrial Accident Board, supra, nor by the fact that the father receives a good income and that the family undoubtedly can get aldng without the contribution. Waite v. Industrial Commission, 68 Ariz. 299, 205 Pac. (2d) 579; Ross v. Industrial Accident Board, supra; Edwards v. Butte & Superior Mining Co., supra.

Morgan v. Butte Central Mining & Milling Co., 58 Mont. 633, 194 Pac. 496, 498, relied on by appellants is not applicable here. There it was an alleged minor dependent who was claiming compensation.

Under the law then in effect a minor dependent was one who was an invalid. The court in that case said: “The only question before us, therefore, assuming that an invalid brother over the age of 16 years is entitled to compensation, is: Was the finding of the board that claimant was not, at the time of the injury, an invalid within the contemplation of the act, supported by any substantial evidence ? ”

What the court said to the effect that voluntary contributions' were not necessarily evidence of dependency was intended to refer only to a minor dependency, that is, one who was incapacitated or an invalid. The Morgan case cites Miller v. Riverside Storage & Cartage Co., 189 Mich. 360, 155 N. W. 462, as authority but in the Miller case the court actually held that-voluntary contributions there shown were sufficient to show dependency.

The Michigan court specifically approved the rule from Howells v. Vivian & Sons, 85 L. T. 529, 4 W. C. C. 106, as follows: “The test of dependency is not whether the family could support life without the contributions of the deceased, but whether they depended upon them as part of that income or means of living. ’ ’

The court did not err in awarding compensation to plaintiffs as dependents and the judgment is affirmed.

ASSOCIATE JUSTICES METCALF, BOTTOMLY and FREEBOURN, concur.