MAGMA COPPER CO.
ALDRETE et al
Award set aside.
Guynn & Twitty, of Phoenix, for petitioner.
H. S. McCluskey, Phoenix, Robert E. Yount and Donald J. Morgan, Phoenix, of counsel, for respondents Industrial Commission of Arizona.
La Prade, Chief Justice. Udall, Stanford, Phelps and Deconcini, JJ., concur.
La Prade, Chief Justice.
[70 Ariz. 49] This is a proceeding to review an award of the Industrial Commission in favor of Anna Aldrete on account of her son Charles Richard Higuera, a minor, six years of age at the time of the final award. The asserted basis for the award was that the child was a dependent stepchild of one Andres Aldrete, who was killed as the result of an accident arising out of and in the course of his employment by respondent Magma Copper Company. This portion of the award is challenged on the ground that the evidence conclusively shows that the child was not totally or partially dependent upon his deceased stepfather. At the date of this award, the mother of the child was the beneficiary of a previous award on account of the child, made by the commission, which had its origin in the death of the child's father, who also lost his life by accident arising out of and in the course of his employment with this identical company. The latter award called for monthly payments of $ 29.57 to continue until the child attained the age of eighteen years or sooner married or died.
In addition to the amount awarded on account of the child under the terms and [70 Ariz. 50] provisions of the Workmen's Compensation Act, A.C.A.1939, § 56-901 et seq., due to the death of the natural father, the mother received for the use and benefit of the child the further sum of $ 12.72 monthly from the Old Age Benefits Division of the Federal Social Security Administration as a result of retirement income credit which had been built up by his natural father prior to the latter's death. Thus the mother, since the boy's birth (he was a posthumous child), has had available from two different sources a guaranteed monthly income of $ 42.29 for her child's support. The challenged portion of the award predicated on the death of the stepfather Mr. Aldrete provides for monthly payments to this child of $ 46.15. Mrs. Aldrete testified that in maintaining the boy she incurred no expense other than for food and clothing and these items did not exceed $ 37.50 per month.
Mr. Aldrete previously had been married and divorced and was the father of a son, Thomas, who was in the custody of and living with his natural mother, and to whose support the father was contributing under the terms of a decree of divorce the sum of $ 25 monthly, and according to his widow the additional sum of $ 10 to $ 12 monthly to cover clothes and incidentals.
Mr. Aldrete, upon his marriage to Mrs. Higuera, moved into the home which she and her son had been occupying since the
death of Mr. Higuera, and the three lived together under one roof until the date of his death. Upon the death of Mr. Aldrete, his divorced wife, Amelia Aldrete, filed claim with the commission for death benefits on behalf of her minor child, Thomas R. Aldrete. The commission issued its findings and award providing for the payment of compensation to the minor son of the deceased and also for payment of burial expenses in the sum of $ 150. The award to the stepson also provided for payment of burial expenses in the sum of $ 150. It is thus seen that two awards were made for burial expenses. The correctness of this latter award for burial expenses is also challenged.
The commission found and now contends that the stepson, Charles Richard Higuera, was totally dependent upon his stepfather, and therefore that the widow is entitled to the maximum death benefits payment under the act on account of the child. Sections 56-953 and 56-960, A.C.A.1939, are the statutory sections which must be satisfied if the commission's award of the maximum death benefits on account of the child is to stand. An award for the ...