Lopez v. Schultz & Lindsay Construction Co. , 79 N.M. 485 ( 1968 )

OPINION

OMAN, Judge.

Plaintiffs have appealed from a judgment denying their claim and dismissing their complaint for workmen’s compensation benefits. They sought recovery of benefits as a dependent father and mother of their deceased son under § 59-10-18.7 (D), N.M.S.A. 1953, which provides in part:

“D. If there be neither widow, widower, nor children, compensation may be paid to the father and mother or the survivor of them, if dependent to any extent upon the workman for support at the time of the workman’s death,

The workman in this case was a nineteen year old son of plaintiffs, who had just completed one year of college away from home. He had financed this year of college from his earnings and from an educational loan obtained by him. His parents had contributed very little to his college expenses. He died on August 11, 1966, as a result of an accidental injury which arose out of and in the course of his employment. He left no widow or children.

If there is substantial support in the evidence for the finding that plaintiffs were not dependent to any extent upon the decedent within the meaning, purpose and intent of our Workmen’s Compensation Act, then plaintiffs must fail on this appeal. Jacquez v. McKinney, 78 N.M. 641, 436 P.2d 501 (1968) ; Geeslin v. Goodno, Inc., 75 N.M. 174, 402 P.2d 156 (1965); Gamboa v. Lee Mack Laundry, 74 N.M. 68, 390 P.2d 656 (1964); Hales v. Van Cleave, 78 N.M. 181, 429 P.2d 379 (Ct.App.1967).

The findings which are pertinent to the question of dependency are as follows:

“5. Plaintiff Jose G. Lopez was employed as a seasonal employee with the Zia Company at Los Alamos, New Mexico during the years 1965 and 1966 and received income from such employment, from miscellaneous employment and from Unemployment Compensation in excess of $4,000.00 in the year 1966 and also in the year 1965.

“6. During the summer of 1966 the decedent, Charles M. Lopez, contributed some money to the plaintiffs, but such contributions were not substantial, not regularly made and not relied upon by plaintiffs for their support and livelihood.

“7. Plaintiffs were not dependent to any extent upon the decedent, Charles M. Lopez, within the meaning, purpose and intent of the New Mexico Workmen’s Compensation Act.”

We are of the opinion that these findings are supported by substantial evidence. In addition to what is hereinabove recited by way of facts, the record shows the father was forty-one years of age, in good health, and earning in excess of $4,000.00 per year. He and his wife owned their home and eight acres of farm land, part of which was cultivated as an orchard and the remainder of which was planted to other crops. The home was apparently subject to a mortgage indebtedness in the amount of three or four hundred dollars. Plaintiffs had one daughter dependent upon them.

The son lived at home at least part of the time during the summers, and he did make some contributions to the support of .the family. But, as found by the trial court, these were not substantial, were not regularly made, and were not relied upon by plaintiffs for their support and livelihood. The father was employed by. .the Zia Company, but had gone out on strike just two days before his son’s death. As a result of the strike he was absent from work without pay for the period of August 9 through August 31, 1966.

Dependency, under our Workmen’s Compensation Act, is a question of fact to be decided in each case upon the particular facts of that case. Ferris v. Thomas Drilling Co., 62 N.M. 283, 309 P.2d 225 (1957); Wilson v. Mason, 78 N.M. 27, 426 P.2d 789 (Ct.App.1967).

Even if we were to feel the evidence sufficient to have supported a finding of partial dependency, still the question was one to be resolved by the trier of the fácts. In workmen’s compensation cases, as in other cases, the findings of the trial court are the findings upon which the case must rest on appeal, unless directly attacked and set aside. Dodson v. Eidal Manufacturing Co., 72 N.M. 6, 380 P.2d 16 (1963); La Rue v. Johnson, 47 N.M. 260, 141 P.2d 321 (1943) ; Christensen v. Dysart, 42 N.M. 107, 76 P.2d 1 (1938); see also §§ 59-10-13.9 and 59-10-16.1, N.M. S.A.1953.

In viewing the evidence to determine whether or not it substantially supports the findings, it must be viewed, together with all reasonable inferences de— ducible therefrom, in the light most favorable to support the findings. Geeslin v. Goodno, Inc., supra; Sessing v. Yates Drilling Co., 74 N.M. 550, 395 P.2d 824 (1964).

The credibility of the witnesses and the weight to be given their testimony are to be determined by the trial court and not by the appellate court. Dotson v. Farmers, Incorporated, 74 N.M. 725, 398 P.2d 54 (1965); Hales v. Van Cleave, supra. The appellate court may not properly substitute its judgment for that of the trial court as to the credibility of any witness or as to the weight to be given his testimony. Crumpacker v. Adams, 77 N.M. 633, 426 P.2d 781 (1967); Arretche v. Griego, 77 N.M. 364, 423 P.2d 407 (1967) ; Bell v. Kenneth P. Thompson Co., 76 N.M. 420, 415 P.2d 546 (1966). It is not for the appellate court to say what testimony should be given credence and what should be disbelieved. Ippolito v. Katz Drug Co., 199 Kan. 309, 429 P.2d 101 (1967).

Although we are firmly committed to the view that our Workmen’s Compensation Act must be liberally construed to effect its purpose, this view of liberal construction applies only to the law and not to the facts. Guidry v. Petty Concrete Co., 77 N.M. 531, 424 P.2d 806 (1967); Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312 (1964).

On appeal only that evidence and the reasonable inferences to be drawn therefrom which support the findings will be considered. All evidence unfavorable to the findings will be disregarded. Nance v. Dabau, 78 N.M. 250, 430 P.2d 747 (1967); Luna v. Flores, 64 N.M. 312, 328 P.2d 82 (1958); Taylor v. McBee, 78 N.M. 503, 433 P.2d 88 (Ct.App.1967).

The plaintiffs’ other points relied upon for reversal have been considered. All' are dependent upon the sufficiency of the evidence to support the court’s findings, and the adequacy of the findings themselves. As above stated, we are of the opinion that the evidence supports the findings. The findings adequately support the conclusions. Nothing more is required.

The judgment should be affirmed.

It is so ordered.

SPIES S, C. J, concurs. ARMIJO, J, dissenting.