Appeal from Industrial Commission.
Proceeding under the Workmen's Compensation Law by Blanche M. Waite opposed by the Industrial Commission of Arizona, J. J. O'Neill, Fred E. Edwards and Ray Gilbert, as members of and constituting the Industrial Commission of Arizona, and Arizona Sand & Rock Co. To review an order of the Commission denying an award, petitioner brings certiorari.
Award set aside.
Cox, Lockwood & Lockwood and L. J. Cox, Jr., all of Phoenix, and Ira Schneier, of Tucson, for petitioner.
H. S. McCluskey, of Phoenix (Robert E. Yount, of Phoenix, of counsel), for respondents Industrial Commission.
Udall, Justice. Stanford, Phelps and DeConcini, JJ., and Bernstein, J., concur. Chief Justice LaPrade did not participate. The Honorable Charles C. Bernstein, Judge of the Superior Court of Maricopa County, was called to sit in his stead.
[68 Ariz. 301] Ferris Herman Waite, a minor of the age of eighteen years, was employed by the Arizona Sand & Rock Co. at Phoenix, Arizona, and on May 8, 1948, while operating a tractor grader, was crushed between the tractor and a conveyor and died the same day as a result of his injuries. He was unmarried and left no dependent children.
A claim for death benefits was filed by petitioner Blanche M. Waite, mother of the deceased (he being the only child), who claimed that at the time of his death and for a number of years prior thereto she had been partially dependent upon him.
The Industrial Commission (overriding the recommendation of its referee and legal department, as it had the right to do) denied death benefits on the ground that the mother was not dependent upon the deceased, either in whole or in part, at the time of his death. The record before us shows that the basis for denial of compensation was its finding that as the father of deceased is regularly employed, and during the year prior to his son's death had earned the sum of $ 4,868, the petitioner is a dependent of her husband and not of the deceased son.
Upon rehearing the commission affirmed its previous award denying death benefits to petitioner, whereupon the latter by an appropriate proceeding in certiorari brought the matter before us for review. The employer was covered by workmen's compensation insurance carried with the respondent commission.
The sole and only issue presented is whether under the facts of this case (which facts will be later amplified as necessary) the petitioner was partially dependent upon the deceased at the time of his death within the purview and meaning of our Workmen's Compensation Law. Under section 56-960, A.C.A.1939, parents do not come within the class of persons presumed totally dependent. Section 56-953, A.C.A.1939, insofar as material, provides:
"Death benefits. -- (a) In the case of an injury causing death, the compensation therefor shall be known as a Death Benefit, and shall be payable in the amount, for the period, and to ...