Llewellyn Iron Works v. Industrial Accident Commision

WASTE, J.

Proceeding to annul an award made by the Industrial Accident Commission for death benefits to William E. McDonald, a minor, by reason of the death of his father, Joseph B. McDonald, an employee of petitioner; the award being made against the petitioner as a self-insurer.

The Commission found that the deceased was employed by the petitioner as a crane man in its manufacturing plant; that he sustained injury arising out of and occurring in the course of his employment from which he died, and that the said employee left surviving him, and wholly dependent, the respondent, William E. McDonald, a minor child, and the said minor child is entitled to a death benefit, together with the usual expenses.

The writ of review is sought upon the theory that the evidence introduced before the Commission does not support the findings of dependency, and that in that respect there was a total lack of evidence in that, at the time of the death of the employee, his minor child was, by interlocutory decree of divorce, awarded solely to the custody of his mother, and that, at the time of the death-of said deceased employee, the minor child had been abandoned by the father and was being solely supported by his other parent. It is further claimed that there existed no agreement whatever subsequent to the divorce by which the deceased, employee had agreed to support the minor child. It is also contended by petitioner that the status of the minor child at the time

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of the death of the employee was not such as to entitle him to the conclusive presumption of total dependency mentioned in section 14a of the Workmen’s Compensation Act (Stats.

1917,

p. 844), in force at the time of the death of the employee. That section, so far as pertinent, provides: “(a) The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee; . . . (2) A child or children under the age of eighteen years, or over said age, but physically or mentally incapacitated from earning, upon the parent with whom he or they are living at the time of the injury of such parent or for whose maintenance such parent was legally liable at the time of the injury, there being no surviving dependent parent, (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.”