Tuttle v. Industrial Accident Commission

SPENCE, J.

Petitioners are the children of Ray W. Tuttle, the deceased employee. Respondents Eugene Keith

[280]

Trautman and Lorraine O’Neil Trautman are not the children of said deceased but are the children of Rilla May Tuttle. The respondent commission found that all four of said children were wholly dependent upon said deceased and in effect divided the death benefit equally among them under the provisions of section 4703 of the Labor Code. Petitioners seek to annul said award claiming that there was no evidence to support the finding that the Trautman children were wholly dependent upon the deceased.

Said deceased had married Della C. Tuttle in Kansas in 1928. Petitioners were born of that marriage and were of the ages of eight and five years respectively at the time of the hearing. Said deceased and Della C. Tuttle separated in 1935 and although the wife commenced a divorce action, no decree was ever obtained. In 1936, deceased married Rilla May Tuttle in Nevada. She was formerly married to one Trautman and the Trautman children were the issue of her former marriage. They were of the ages of eighteen and thirteen years respectively at the time of the hearing. The Trautmans had been divorced and the wife (said Rilla May Tuttle) had accepted $1,000 in a property settlement and had agreed to support said Trautman children. She was employed and supporting her children at the time of her marriage to the deceased in 1936 and was practically continuously employed thereafter up to the time of the death of said deceased in July, 1938. Said Rilla May Tuttle, together with her children (the Trautman children) had been living with deceased in Oakland for some time prior to his death.

No claim is asserted in this proceeding on behalf of either Della C. Tuttle or Rilla May Tuttle. The controversy is solely one involving the respective rights of the Tuttle children, the petitioners, and the Trautman children, the respondents. It is conceded by respondents that the Tuttle children were entitled to the benefit of the conclusive presumption that they were wholly dependent (Labor Code, sec. 3501), and that the Trautman children were not entitled to the benefit of said presumption. On the other hand, petitioners do not question the claim that the Trautman children were in good faith members of the household of the deceased within the meaning of section 3503 of the Labor Code. It therefore appears that the question of whether the Trautman children were wholly dependent or only partially dependent upon the