Summary
In Wallace v. American Mut. Liab. Ins. Co., 73 Ga. App. 869 (38 S.E.2d 624), the court affirmed an award denying compensation to an adult son receiving funds from his father at the time of the latter's death.
Summary of this case from Turner v. U.S. Fidelity Guar. Co.Opinion
31271.
DECIDED JUNE 6, 1946.
Appeal; from Chatham superior court — Judge Atkinson. February 28, 1946.
Gilbert E. Johnson, for plaintiff.
Neely, Marshall Greene, for defendants.
The evidence not demanding a finding that the claimant, who was an adult son of the deceased, was in fact dependent, in whole or in part, upon the deceased for support for a person of his class and position, under circumstances indicating an intent on the part of the deceased to furnish such support, the award of the Board of Workmen's Compensation denying compensation is supported by evidence and, not being otherwise illegal, is conclusive and binding upon this court; and the superior court did not err in affirming the award of the State Board of Workmen's Compensation denying compensation.
DECIDED JUNE 6, 1946.
Allyn M. Wallace filed a claim for compensation with the State Board of Workmen's Compensation against Judkins Lumber Company and its insurance carrier, American Mutual Liability Insurance Company, on account of the death of his father, William Henry Wallace, who died from injuries sustained in an accident which arose out of and in the course of his employment with the Judkins Lumber Company.
On the hearing before the director, it was stipulated by the parties that the sole question at issue was one of dependency. The only witnesses to testify were the claimant and his wife; and the wife's evidence was to the effect that she had heard the testimony of the claimant and knew of her own knowledge that it was substantially correct, and she adopted it as her evidence in the case.
The claimant testified: That he was 38 years of age and his father was 71 years old at the time of his death; that his father moved into the house with him and his wife after the death of the claimant's mother some nine months before his death; that the claimant was an only child and no one else was dependent on his father for support; that the claimant was a special attorney for the Atlantic Coast Line Railroad; that his father wanted him to practice law and made suggestions as to the purchase of office equipment and a law library, and the library, which he was buying, cost about $1000; that his father was to pay for the equipment and library by turning over money to him to pay for them; that his father averaged giving him $20 a week, and sometimes gave him more than that, and his father boarded with him and his wife, which board was worth about $5 a week; that, at the time of his father's death, the claimant was making $240 a month as salary from the Central of Georgia Railroad, and was making about $15 a month from his law practice; that, before his mother's death, she deeded him certain property of the value of about $2600, and that his father received the rent from this property until his death, and the claimant received this rent after his father's death; that the claimant owned his home, which was worth about $4000, but there was a small loan against it and the monthly payments on his home were $26 a month; that the primary purpose of the $20 a week which his father gave him was to assist him in getting established as a lawyer and to take care of the claimant's obligations; that he assumed the expenses of his mother's last illness and funeral, because his father was not able to pay them; that the total expense of his mother's last illness and funeral and a marble slab to mark her and his father's grave was $1327.50; that the slab was purchased at the request of his father, who stated that he would assist him to pay for it; that he owned an automobile in which he rode to Savannah nearly every day; that the actual living expenses of himself and wife would average around $200 a month and, in addition to these actual living expenses, there were expenses for pleasure, church matters, and the like, and he averaged contributing $15 to $20 a month to his church; that he knew at the time he assumed the obligations of his mother's last illness and funeral that he was not legally liable for them but that they were obligations of his father; that his father, at his death, left $200 in the bank; that, in addition to the $20 a week which his father gave him, he turned over to the claimant the $25 a month he received from the property which had been formerly owned by the claimant's mother and deeded to the claimant some months before her death.
The hearing director found as a matter of fact that the claimant was not dependent, either in whole or in part, upon his father at the time of the latter's death, or in part, upon his father at the time of the latter's death, or for a period of three months prior thereto, and entered an award denying compensation. On appeal, the finding and award of the director were approved by the full board. The superior court affirmed the award of the board denying compensation, and the claimant excepted.
The plaintiff in error contends that a finding was demanded as a matter of law that he was partially dependent upon his father at the time of the latter's death, and that the finding and award of the board are without evidence to support them. Except where the workmen's compensation act specifically creates a presumption of dependency in favor of named classes, the question of dependency is one of fact rather than of law. In the present case, the claimant being more than 18 years of age, there was no original legal presumption of dependency. United States Fidelity Guaranty Co. v. Washington, 37 Ga. App. 140 ( 139 S.E. 359). Also, see Maryland Casualty Company v. Campbell, 34 Ga. App. 311 ( 129 S.E. 447), and Code, § 114-414.
It was said in Glens Falls Indemnity Company v. Jordan, 56 Ga. App. 449, 452 ( 193 S.E. 96), quoting from 1 Honnold on Workmen's Compensation, 224: "While ordinarily no exact standard for the determination of dependency is prescribed by statute, and it is difficult, if not impossible, to formulate such a standard, it may be said in general terms that a `dependent' is one who looks to another for support, one dependent on another for the ordinary necessities of life, for a person of his class and position; and that, to be entitled to compensation as a dependent, one need not deprive himself of the ordinary necessities of life to which he has been accustomed. . . It follows that dependency does not depend on whether the alleged dependents could support themselves without decedent's earnings, or so reduce their expenses that they would be supported independent of his earnings, but on whether they were in fact supported in whole or in part by such earnings, under circumstances indicating an intent on the part of the deceased to furnish such support."
In the present case, it appears from the evidence that the mother of the claimant, a few months before her death deeded him property worth about $2600, and that the claimant's father received $25 a month income from this property, which he turned over to the claimant in addition to the $20 a week turned over to him from his salary. It also appears from the evidence that the claimant voluntarily assumed the obligations of his father for the last illness and funeral expenses of his mother, and that he used the money contributed by his father, along with his other income, to pay his monthly obligations. There is nothing in the record, however, to demand a finding that the claimant, who was 38 years of age, was in fact dependent, in whole or in part, upon his father for the ordinary necessities of life, for a person of his class and position, under circumstances indicating an intent on the part of the deceased to furnish such support; but, on the contrary, the claimant testified that his "father told my wife and me that he had no particular purpose for his money; that he was living with us, and it was his main purpose to try and get me straight, help me on toward the practice of law and get me established in the legal field, that was his statement to me."
Under the evidence in this case, the board was authorized to find that the claimant was not dependent, within the provisions of the Code, § 114-414, upon his father, in whole or in part, at the time of the latter's death. In these circumstances, the award of the board, being supported by evidence and not being otherwise illegal, is conclusive and binding upon this court. ( Georgia Power Light Co. v. Patterson, 46 Ga. App. 7, 8, 166 S.E. 255, and citations); and the superior court did not err in affirming the award of the State Board of Workmen's Compensation.
Judgment affirmed. Parker, J., concurs. Felton, J., concurs specially.
I concur in the judgment because as a matter of law the claimant was not dependent on the deceased employee under the Code, § 114-414, which provides: "The dependency of a child, except a child physically or mentally incapacitated from earning a livelihood, shall terminate with the attainment of eighteen years of age." The claimant was not physically or mentally incapacitated from earning a livelihood.