Opinion
September 28, 1939.
November 15, 1939.
Workmen's compensation — Award — Parents — Mother — Total disability — Condition existing at time of accident — Ability of claimant to work — Existence of other children.
1. Under section 307 of the Workmen's Compensation Act, the dependency of a father or a mother upon a deceased child is to be determined by the condition existing "at the time of the accident."
2. The mere physical ability of a mother to work does not of itself preclude a finding of total dependency upon a deceased child.
3. The existence of other children legally liable for the support of a parent does not, as a matter of law, preclude a finding of total dependency upon a deceased child.
4. The existence of dependency and its extent are questions of fact which must be determined under the particular circumstances in each case.
Appeal, No. 15, Oct. T., 1939, from judgment of C.P. No. 5, Phila. Co., June T., 1938, No. 5028, in case of Mabel Norris v. Philadelphia Life Insurance Company et al.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Judgment affirmed.
Appeal by defendants from award of Workmen's Compensation Board.
The facts are stated in the opinion of the court below, by LAMBERTON, J., as follows:
Claimant filed a petition for compensation for the death of her unmarried 23 year old son, Clyde Norris, who died on July 10, 1937, as the result of an accident occurring in the course of his employment with defendant company. The Compensation Referee found as a fact that Claimant was totally dependent on Clyde Norris for support at the time of his death and made an award at the rate of $10 per week for a period of 300 weeks. The Findings of Fact, Conclusions of Law, and Award were affirmed by the Workmen's Compensation Board on appeal. The sole question before us is whether the testimony supports the Referee's finding of total dependency. Defendant admits partial dependency.
The facts may be stated as follows: Claimant is forty-two years of age and has been a widow for twelve years. At various times since her husband's death she has been employed with a rubber company at earnings ranging from $6 to $20 per week, but during the last several years she has not been employed but has lived with her son Clyde in an apartment furnished by him. At the time of his death Clyde was receiving a salary as superintendent of an apartment house of $103 per month plus the use of a four room apartment where he and his mother lived. The testimony is that at the time of his death, and for some time prior thereto, Clyde had furnished Claimant with food, shelter, clothing, and all the necessities of life. During said time Claimant had no property or income of her own.
Claimant has three surviving children. The oldest son, Chester Norris, is twenty-eight years of age, married, and has one child. His earnings are $22 a week plus an apartment in which to live. Chester was in the habit of giving his mother small sums of money every once in awhile which she said she used "to get a sandwich or something or other." These gifts were irregular and trifling in amount.
Claimant's other two children are married daughters, Nellie Lambert and Maude Arney. Nellie Lambert is eighteen years of age and has one child. At the time of Clyde's death, she was recuperating from an illness, and her husband was unemployed. In this time of stress, Nellie Lambert and her husband lived with and were supported by Claimant's son, Chester Norris. Since that time, Nellie Lambert's husband has secured employment. Maude Arney is twenty-six years of age and lives some place in Indiana, but Claimant has not heard from her for several years. Since Clyde's death, Claimant has resided with her son Chester.
Defendant contends that Claimant was not totally dependent upon her son Clyde (1) because she is healthy and able to work; (2) because her other son, Chester, did in fact contribute something to her support; (3) because Claimant's other children were legally liable to contribute to her support, and therefore she was partially dependent on them whether they actually so contributed or not.
The Workmen's Compensation Act, Section 307, subdivision 5, as amended, provides, inter alia, as follows:
"5. If there be neither widow, widower, nor children entitled to compensation, then to the father or mother, if dependent to any extent upon the employe at the time of the accident, twenty-five per centum of wages, but not in excess of five dollars per week: . . . . . . And provided further, That if the father or mother was totally dependent upon the deceased employe at the time of the accident, the compensation payable to such father or mother shall be forty-five per centum of wages, but not in excess of ten dollars per week."
It will be noted that in both parts of the foregoing provision dependency is gauged by the condition existing "at the time of the accident." We are, therefore, bound by the situation as it existed at the time Clyde Norris was killed. If Claimant was totally dependent at that time we are not concerned with the fact that Claimant may have worked in the past or may be able to work in the future. This is not only the plain statutory meaning, but it is common sense. How can we look forward and say that Claimant can work or can get work or how long she will be able to work? Defendant has cited no authorities in support of its contention that mere physical ability to work of itself precludes a finding of total dependency. To so hold would be a backward step in the administration of the Workmen's Compensation Law.
The actual contributions of Chester to his mother were too negligible to be seriously considered. He did not pay her rent, he did not buy her food, he did not buy her clothes. Occasionally he gave her a little money which she used for recreation. This is no more important than if he had taken her to the theatre or bought her an ice cream soda. Dependency is concerned with the necessities rather than the niceties of life.
The final contention of the Defendant merits more serious consideration. It is true that all of an indigent parent's children are legally liable to contribute to the parent's support. It is true that our Superior Court has said that an indigent parent may in law be partially dependent upon a child because of that child's obligation to support, even though in fact the child did not support, Feldman v. Publishing Co., 122 Pa. Super. 491, 186 A. 308. It is true that the Superior Court has said that the existence of other children and their ability to contribute to the support of their parent are matters to be considered in determining whether such parent was totally or partially dependent upon a deceased child, Kovatch et ux. v. Durkin et al., 116 Pa. Super. 192, 176 A. 507. Fawson v. Sterrick Coal Co., 129 Pa. Super. 245, 195 A. 165. Kloskowski v. Hudson Coal Co., 130 Pa. Super. 490, 198 A. 689. But there is no reported case which holds that, as a matter of law, the existence of other children precludes a finding of total dependency upon a deceased child, and our Appellate Courts have had ample opportunity to so hold if such were the law. Under such circumstances, in Fawson v. Sterrick Coal Company, supra, Judge CUNNINGHAM said: "The existence of dependency and its extent are questions of fact which must be determined under the circumstances appearing of record in the case then at bar, and . . . . . . it is impossible to frame general definitions applicable to all cases." In Kloskowski v. Hudson Coal Company, supra, the same Judge said: "Where, as here, dependency is admitted, its extent primarily depends upon the facts of each individual case, and no general rule applicable to all cases can be laid down."
In Feldman v. Publishing Company, supra, Judge CUNNINGHAM quoted with approval the following language from the case of Morris v. Yough Coal Supply Company, 266 Pa. 216, 109 A. 914, as the test of partial dependency: "Were the contributions needed to provide the claimant (recognized as such by the statute) with some of the ordinary necessaries of life suitable for persons in her class and position?" In Kloskowski v. Hudson Coal Company, supra, Judge CUNNINGHAM defined total dependency in the following words: "We think the phrase `totally dependent,' as used by the legislature, is equivalent to `without any other source of income or livelihood.'" Claimant plainly comes within this latter category if the test be made at the date of Clyde's death. She was then receiving her entire support, except for recreation now and then, from Clyde. The fact that she had previously worked, that she may be able to work, and that, subsequent to Clyde's death, she has been living with her son Chester have no bearing whatever. It is not only a fact that Claimant's children other than Clyde did not contribute to her support, but it is a fact that the two of whose whereabouts we know were unable to do so. Chester, with an income of $22 a week and a place to live, had a wife and child to support and a sister and brother-in-law on his hands. Nellie Lambert had just been seriously ill, had a child, and her husband was out of work.
We can not sustain Defendant's appeal if the Referee's finding of total dependency is supported by competent evidence. It most assuredly is. We will go further and say that if we were the finders of fact we would come to the same conclusion as did the Referee.
Judgment entered for claimant. Defendants appealed.
Errors assigned, among others, related to the action of the court below in dismissing defendant's exceptions.
Frank R. Ambler, for appellants.
John B. Martin, with him Duane, Morris Heckscher, for appellee.
Argued September 28, 1939.
The judgment of the court below, sustaining the award of the compensation board, is affirmed on the opinion of Judge LAMBERTON.