Pacific Employers Insurance v. Industrial Accident Commission

WARD, J. The main question presented by this writ of review is the constitutionality of Labor Code, section 3501, under which a death benefit was awarded the decedent’s minor son, Robert Wayne Humphreys. The minor is now represented by his mother, the wife of the decedent. There is no dispute that the petitioner in the present proceeding was the insurance carrier of the decedent’s employer, and that both the employer and the employee at the time of the accident were subject to the provisions of the Workmen’s Compensation Act. All parties entered into a compromise which was disapproved by the commission.

The minor’s birth certificate shows that he was born February 6, 1928. There is evidence that the mother separated voluntarily from the decedent in 1933, and that since 1935 she never received nor requested support from him. She is self-supporting and supported the minor until three years before his father’s death when he became a wage earner and supported himself. The decedent, while unloading a tractor, on January 15, 1946, sustained an injury occurring in the course of and arising out of his employment which resulted in his death the same day.

Petitioner contends: “1. An award based on section 3501 of the Labor Code was arbitrary and unreasonable, for the undisputed and admitted facts established that the respondent minor was neither wholly nor at all dependent for support upon the decedent. 2. If the presumption specified in said section 3501 be regarded as applicable and irrebuttable, then the said section must be held unconstitutional and the said award annulled.”

Labor Code, section 3501, provides in part that "The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee:. . . (b) A child under the age of eighteen years ... for whose maintenance the parent was legally liable at the time of injury, there being no surviving dependent parent.” The referee’s .finding that the mother was not dependent upon the decedent is not contested.

Labor Code, section 3501, should not be declared arbitrary and unreasonable merely because a child was not actually receiving support from the decedent during the period of [39]minority if, during that time, the child could have been declared legally entitled to support. (Douglas Aircraft Co. v. Industrial Acc. Com., 24 Cal.2d 340 [149 P.2d 702]; Fireman’s Fund Indemnity Co. v. Industrial Acc. Com., 24 Cal.2d 942 [149 P.2d 705].) The decedent was legally responsible for the support of his son. (Lewis v. Lewis, 174 Cal. 336 [163 P. 42]; Federal Mutual L. Ins. Co. v. Industrial Acc. Com., 195 Cal. 283 [233 P. 335]; McKendrick v. Southern California Edison Co., 15 Ind. Acc. Com. 164.) The fact that the minor was admittedly self-supporting did not remove the responsibility for his support from the decedent’s shoulders. (Pacific G. D. Co. v. Industrial Acc. Com., 184 Cal. 462 [194 P. 1, 13 A.L.R. 725].) Similarly, the fact that under Civil Code, section 196, the mother may also be legally responsible for the minor is immaterial. (Pacific G. D. Co. v. Industrial Acc. Com., supra.)