Summary
In Wende v. McManigal, 135 F.2d 151 (2d Cir. 1943), the Second Circuit held that parents' partial dependency upon a child is sufficient to authorize a wrongful death award under the Longshore and Harbor Workers' Compensation Act.
Summary of this case from Complaint of DFDS Seaways (Bahamas) Ltd.Opinion
No. 221.
April 30, 1943.
Appeal from the District Court of the United States for the Western District of New York.
Suit by David T. Wende, employer, and the Westchester Fire Insurance Company of New York, insurer, against Kenneth G. McManigal, Deputy Commissioner, United States Employees' Compensation Commission, Ninth Compensation District, and Frand H. Schweitzer and Leontine Schweitzer, to enjoin enforcement of an award under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. From an order denying an injunction to stay enforcement of the award, the plaintiffs appeal.
Affirmed.
Robert Schweitzer died on November 21, 1941, his death resulting from poisoning from carbon-tetrachloride which was being used as a cleaning solvent while he was employed on the yacht of appellant, Wende. In proceedings before appellee, McManigal, Deputy Commissioner of the United States Employees' Compensation Commission, acting pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Chapter 18, 33 U.S.C.A. § 901 et seq., an award was made to decedent's father and mother as partial dependents. Appellees brought suit in the court below, under § 921 of the Act, to enjoin enforcement of the award. From an order denying the injunction, appellants appeal.
Decedent became 18 years of age in July 1941. He was then employed for a short period in a brewery at an average weekly wage of $36. In August, 1941, he went to work for Wende on his yacht, and received $90 a month and "found." The testimony shows that the value of the "found" was $50 per month and that the average period of yearly employment of one occupying the position of the decedent was nine months. The Deputy Commissioner determined that the average yearly earnings were $1,260, consisting of nine months salary at $90 a month plus nine months of "found" at the rate of $50 per month. Based on an average weekly wage of $24.50, he made an award, under § 909(d), of 25% thereof to both the father and the mother, amounting to $6.60 per week to each of them.
Until decedent's employment on the yacht, he had been living at home with his father and mother. The father was 60 years af age and the mother about 56. Until 1929, the father had had a good job with a lumber company, but thereafter his affairs became worse until he and his wife were having some financial difficulties. He then mortgaged his house (which had an assessed valuation of $4800) for $800 and borrowed on his life insurance policy. At the time of decedent's death, four children and decedent lived with the father and mother. One of the children was a son, thirty years of age, who was employed although the amount of his earnings do not appear; another was a daughter of 28 years who received a salary of $18 a week; another was a son age 28, earning $20 a week, and the fourth was an invalid. The father was then earning from $30 to $35 a week. All the children who were able to do so contributed to a common family pool which was expended by the mother to cover all expenditures. The decedent, from the time he began working and up to the time of his death, contributed approximately $101 to the family budget; all this contributions were expended by the mother for the table or for the purchase of things for the home. While employed on the yacht, decedent lived aboard it except that he came home on weekends; sometimes during the week, if the boat was nearby, he came home for an evening and returned to the yacht. He lived at home from October 28 to November 4, during which time he had all his meals at home.
Brown, Ely Richards, of Buffalo, N.Y., for appellants.
George L. Grobe, of Buffalo, N.Y., for Kenneth G. McManigal, appellee.
Hubert E. Collins, of Tonawanda, N.Y., for Frank H. and Leontine Schweitzer, appellees.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
Partial dependence is sufficient. Texas Employers' Insurance Association v. Sheppeard, 5 Cir., 62 F.2d 122, 124; London Guarantee Accident Co. v. Hoage, 64 App.D.C. 105, 75 F.2d 236.
There was substantial evidence to support appellee's finding of such dependency, taking into account the ages of the father and mother, the earnings of the father and of the other children and the fact that decedent had been contributing to the parents more than what he cost them. It does not preclude dependence that the father was earning enough to support himself alone, since he owed a duty to support his wife. Pocahontas Fuel Co. v. Monahan, 1 Cir., 41 F.2d 48. Parents are dependent if their own resources are not sufficient to support them, even if they receive help from their other children. To be sure, the parents were not dependent in the sense that they would have been destitute without decedent's financial assistance. But that is not the test; the test is whether his contribution was in whole or in part a means of maintaining them in the manner in which they had been living and whether they looked forward to and relied upon the continuance of decedent's contributions to that end. Michigan Transit Corporation v. Brown, D.C., 56 F.2d 200; Texas Employers' Insurance Association v. Sheppeard, supra; cases decided by the New York courts construing the New York Workmen's Compensation Law we do not regard as authoritative.
Affirmed.