Myers v. Pacific Greyhound Lines

PHILLIPS, Circuit Judge

(dissenting).

As stated in the majority opinion, the act here involved is in derogation of the common law and must be strictly construed. On the contrary, the Workmen’s Compensation Act should be liberally construed in favor of the claimant. Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903, 905; Stevenson v. Lee Moor Contracting Co., 45 N.M. 354, 115 P.2d 342, 345. For this reason I do not think the decisions under the Workmen’s Compensation Act are controlling. The evidence, in my opinion, does not show that Mrs. Myers was unable to obtain a school in 1940. She testified that the school she applied for was filled by a transfer. She did not testify that she made any real effort to obtain another school. Her husband was a farmer and mechanic. She was a trained and experienced school teacher with a life certificate in Oklahoma. That she and her husband were fully capable of making a living without aid from her deceased brother seems obvious to me.

The decisions under the wrongful death cases in other jurisdictions have construed the word “dependent” as embracing the element of “necessitous want,” an actual inability to support himself, an element which it seems to me is lacking in the instant case. Bortle v. Northern Pac. Ry. Co., 60 Wash. 552, 111 P. 788, 789, Ann.Cas.1912B, 731; Duval v. Hunt, 34 Fla. 85, 15 So. 876, 881; Southern Ry. Co. v. Vessell, 192 Ala. 440, 68 So. 336, 337, Ann.Cas.1917D, 892; Benoit v. Miami Beach Electric Co., 85 Fla. 396, 96 So. 158, 159; Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 So. 246, 249.

For these reasons I respectfully dissent.