Although no cross-appeal was filed we agree with the Superior Court that the evidence presented supports the ALJ's findings of fact, adopted by the Full Board as its findings in each case, and the conclusion that Carolyn Milam was not a dependent of Donald Milam and that Cordie Milam was not an employee. See Smith v. Travelers Ins. Co., 71 Ga. App. 24, 26 ( 29 S.E.2d 709) (1944) as to dependency, and Scoggins v. Aetna Cas. c. Co., 139 Ga. App. 805 ( 229 S.E.2d 683) (1976) as to a partner being an employee. The main issue in this case is whether appellants were estopped from controverting appellee's claims.
But see Larson, Workmen's Compensation Law, § 63.22, wherein this principle is criticized. The case of Smith v. Travelers Ins. Co., 71 Ga. App. 24 ( 29 S.E.2d 709), is not in conflict with our ruling. There this court ruled that allowance must be made for the board and lodging of an adult son (and brother) living at home with his partial dependents.
See Central of Ga. R. Co. v. Henson, 121 Ga. 462 ( 49 S.E. 278); Richmond R. Co. v. Johnson, 89 Ga. 560 ( 15 S.E. 908); Smith v. Hatcher, 102 Ga. 158 ( 29 S.E. 162). Also in the case of Fuller v. Inman, 10 Ga. App. 680 ( 74 S.E. 287), construing Code § 4424 of Civil Code of 1910, now Code § 105-1307, the mother is permitted to recover, notwithstanding the father of the child is in life, in good health, living with the family, and exercising his personal rights up to the time of the child's death. The case of Smith v. Travelers Ins. Co., 71 Ga. App. 24, 25 ( 29 S.E.2d 709) is distinguishable from this case because the mother in that case was the head of the household and the amount contributed by the son would in that instance be charged against the amount used for his board, but, in the present case, such is not the case. The case of Bituminous Cas. Corp. v. Williams, 80 Ga. App. 337 (2) ( 56 S.E.2d 157) is a total dependency case and is not under rule of partial dependency.
In cases of total dependency the amount of the award is not computed on the basis of the proportion of the actual amount of contributions to average weekly wages. Code, § 114-413 (b), (c). Smith v. Travelers Ins. Co., 71 Ga. App. 24 ( 29 S.E.2d 709) involved partial and not total dependency. The court did not err in affirming the award.
The question of dependency is one of fact in this particular case, and should have been left to the determination of the jury. See Smith v. Travelers Ins. Co., 71 Ga. App. 24, 26 ( 29 S.E.2d 709); Scott v. Torrance, 69 Ga. App. 309 ( 25 S.E.2d 120); Sovereign Camp of the Woodmen of the World v. Warner, 25 Ga. App. 449 ( 103 S.E. 861). The question remains, however, whether or not the petition sufficiently alleged that the husband was dependent upon the plaintiff wife.
Under the facts of this case, the commission was fully authorized to find that partial dependency existed." See, in this connection, Maryland Casualty Co. v. Campbell, 34 Ga. App. 311 ( 129 S.E. 447); Smith v. Travelers Ins. Co., 71 Ga. App. 24 (2) ( 29 S.E.2d 709); 28 R. C. L. 769, § 64; L.R.A. 1916A, 248; 45 A.L.R. 894; 28 R. C. L. 827, § 116. It is generally agreed by all the authorities that "standard of living" is a generic term and must of necessity be determined by the facts and circumstances in each particular case. So the question here is: Did the evidence demand a finding as a fact that the claimants were not partially dependent upon their deceased son for support? If so, the judgment should be reversed, otherwise, affirmed.