Munoz v. Workmen's Compensation Appeals Board

Opinion

The spouse of Jose Munoz petitioned for total dependency death benefits due as a widow with seven surviving minor children. (Lab.

“Total,” however, does not require 100 percent dependency. It is stated in 2 Hanna, California Law of Employee Injuries and Workmen’s Compensation (2d ed.) section 15.02, (3) (b) as follows: “Total dependency exists as a fact when the dependent has subsisted entirely upon the employee’s earnings. It is not necessary that the dependent be physically or mentally incapable of self-support. Nor will his total dependency status be affected by his small and inconsequential earnings in irregular employment, or a small income from another source, if such earnings or income did not substantially affect his dependency status toward the employee. However, a dependent having substantial earnings and regular employment, or a substantial portion of his living cost met from a source other than the employee, is not totally dependent, although he may be partially dependent.” As applied to this case, the key language in the foregoing quotation seems to be “small income from another source, if such . . . income did not substantially affect his dependency status toward the employee.”

Peterson v. Industrial Acc. Com. (1922) 188 Cal. 15 [ 204 P. 390 ], by no means a “spotted calf” case comes the closest in its facts to the case we have before us. There, a sister and a nephew of a deceased employee were held to be totally dependent upon his earnings. There, as here, the employer claimed dependency was partial because the sister from time to time took charge and care of children and when working in that occupation earned between $10 and $15 per month. The nephew had a newspaper route part of the time, earning $5.00 per month. (We remember these were 1919 dollars.) Otherwise, both were entirely dependent upon decedent. Our Supreme Court said (on p. 18): “It is but a truism to say that total dependency exists where the applicants subsist entirely on the earnings of the deceased employee, but in applying this rule courts will not deprive applicants of the rights accorded total dependents, when otherwise entitled thereto, merely because of minor considerations or benefits which do not substantially affect or modify the status of the applicants toward the deceased employee. (Bloomington-Bedford Stone Co. v. Phillips, 65 Ind.App. 189 [ 116 N.E. 850 ].)” The court concluded (on p. 19): “It appearing that at the time of the deceased employee’s injury the applicants were dependent upon his earnings and contributions for shelter, food, and clothing, and had no independent means of their own, it must be held that they were total dependents.”

Coborn v. Industrial Acc. Com. (1948) 31 Cal.2d 713 [ 192 P.2d 959 ], was unquestionably a partial dependence case and the court so held. Its facts need not be related. It cites with approval and thereby gives a certain currency (up to 1948) to the earlier decisions, both pro and con on the issue of total versus partial dependency.

In London Guar. etc. Co. v. Ind. Acc. Com. (1943) 57 Cal.App.2d 616 [ 135 P.2d 7 ], the court reversed an order that the deceased employee’s grandniece [the applicant] was totally dependent upon him. The grandniece was 18 years old and earned approximately $80 a month. She lived with decedent, who paid the rent, utilities, food and medical bills. In reversing the order, the court relied upon the fact that the grandniece was earning substantial sums and was expending all of her earnings on herself and for her support in maintaining her standard of living. She paid for some of her clothes, her meals out, and substantial incidental expenses. The court referred to the case of Tuttle v. Industrial Acc. Com. (1939) 31 Cal.App.2d 279 [ 87 P.2d 881 ]. In Tuttle, the deceased employee was the stepfather of children who were determined to be total dependents. The court reversed the finding of total dependency because the children’s mother regularly earned between $16 and $18 a week which was contributed to the support of the family. The deceased employee earned approximately $150 the month before he was killed. The deceased employee, therefore, contributed approximately % the total amount of the family’s support, Wherein his wife contributed approximately Vs the total amount.

It is true, as the code section (Lab. Code, § 3501) declares, that dependency is to be determined as of the date of the fatal injury. But the Legislature did not intend, as the cases cited show, that that provision should (or could) be applied rigidly, literally and unrealistically. It must be remembered that the dependents are being allowed a one-time death benefit to compensate them finally and fully for all monetary loss occasioned by the death of decedent.

When Munoz, Senior, died, two sons had already reached adulthood. They had left the family home and did not contribute anything to petitioners. Brijido and Felipe, when employed, had contributed small amounts during their minority. When we consider the overall picture of the family financial position at the time of decedent’s death, it is but to state the obvious when we say that both Brijido and Felipe will, no doubt, soon be leaving the family “nest” (if they have not already done so) that they will marry, start their own families and will support them. Perforce, as children have done throughout the ages, each will be helping “mama” and her still young brood financially to the extent of their then ability to do so, but it was