Driscoll v. Jewell Belting Co. , 96 Conn. 295 ( 1921 )

The commissioner found that the plaintiff was a dependent of the decedent, her deceased brother, and that his decease was due to pneumonia resulting from a traumatism arising out of and in the course of his employment with the defendant Belting Company.

The Superior Court dismissed the defendants' appeal from the award, and their appeal from that judgment raises two questions: (1) Was the conclusion of the commissioner that a causal connection existed between the traumatism and the pneumonia so unreasonable as to constitute legal error? (2) Was the claimant, a widowed sister of the decedent, a partial dependent of her deceased brother?

Both questions are questions of fact, and the conclusion of the commissioner is conclusive unless in reaching these conclusions he applied an illegal standard, or drew a conclusion which the subordinate facts do not justify, or found a fact material to this conclusion without evidence or against the evidence. Powers v. Hotel Bond Co., 89 Conn. 143, 153, 93 A. 246.

The defendants have not pursued the practice approved of by us in Atwood v. Connecticut L. P. Co.,95 Conn. 669, 112 A. 270, in order to have the facts found by the commissioner corrected. They have relied upon our reading the evidence as certified and making the corrections desired. The practice is new, and, since the Atwood opinion was handed down subsequent to the taking of this appeal, we shall not at this time enforce the practice approved of in that case, but, in order to do complete justice to all of defendants' claims, we have examined the evidence so certified to ascertain if any of the facts were found without or contrary to the evidence.

Whether there was a causal connection between the traumatism and the pneumonia was a subject of fierce conflict on the part of the doctors who testified. The conclusion of the commissioner was based upon his acceptance of the opinion of the expert in behalf of the plaintiff instead of that of the experts produced by the defendants. Counsel for the defendants attack the grounds of this expert's opinion as so wholly inadequate and unreasonable as to render his opinion unreasonable and so to constitute an error of law.

An opinion of an expert may be unreasonable because the grounds upon which it rests are so unreasonable as to make it an error of law for a court to base its decision upon the opinion. But in this case the evidence discloses merely a sharp conflict of professional opinion, reasons for and reasons against, a plain case of conflicting evidence. A finding made by a commissioner upon conflicting evidence is in the same position a similar finding would be in if made by the Superior Court judge. Neither can, except in a most exceptional case, be successfully attacked.

A conclusion reached upon comparison and examination of conflicting professional opinion, by reliance upon one opinion rather than another, can rarely be found erroneous in law in the absence of bad faith. Russo v.Maresca, 72 Conn. 51, 43 A. 552; Nolan v. New York,N. H. H.R. Co., 70 Conn. 159, 30 A. 115; SeymourMfg. Co. v. Derby Mfg. Co., 94 Conn. 311, 342,109 A. 395.

A finding or a conclusion cannot be held to be erroneous merely because it was based upon the testimony or opinion of one witness in opposition to that of several others testifying to the contrary. Condon v. Pomroy-Grace,73 Conn. 607, 614, 48 A. 756. Whether we would have reached a like conclusion had we been charged with the duty of determining this issue upon this conflicting evidence, is beside the mark. The good faith of this expert is not impugned, nor are the grounds of his opinion so inconclusive and so overwhelmingly destroyed by the evidence submitted by the defendants that we ought to disregard it.

An appeal to this court from the decision of the Superior Court in a compensation case which can only be sustained by our finding that the commissioner found the facts wrongly or drew his conclusion wrongly upon conflicting evidence, and that the Superior Court erred in passing upon the same findings or conclusions, will not be sustained unless the error is apparent and its effect upon the decision very material. Two competent tribunals have passed upon this question of fact; the presumption is strong that a conclusion to which each tribunal has come is correct, and the burden of overcoming this presumption upon an appeal to this court must necessarily be a heavy one.

The finding that the plaintiff was a partial dependent of the decedent is attacked upon two grounds: (1) that the contributions made by the decedent during the six months preceding his decease do not justify the finding that the plaintiff was a partial dependent of the decedent; and (2) that the subordinate facts show that the plaintiff did not rely upon the decedent for support, but had sufficient means of support at hand in the person of her two adult employed unmarried children, who were legally obligated by the law of Massachusetts, where they were domiciled, to furnish such support. We have examined the finding in connection with the evidence, and think the commissioner was amply justified in finding that the deceased had for a considerable period of time prior to his death been in the habit of contributing to the plaintiff $6 a week for her support. The contributions of $150 and $100, during the period of the deceased's absence from plaintiff's home, more than made up the average of $6 a week; in fact the subordinate facts, supported as they were by the evidence, would have justified a conclusion that the deceased had contributed on the average $8 a week instead of the $6 a week, which the commissioner found. There is no direct finding that these contributions were necessary to maintain the plaintiff in her station and position in life, but, as the trial judge pointed out, this finding is necessarily involved in the conclusions reached.

The finding that the plaintiff in fact relied upon these contributions is not attacked as without the evidence, but as an unnecessary reliance, since she had two adult children who were able to support her, and by the law of Massachusetts they were legally obligated so to do, and hence the defendants' claim that the plaintiff had sufficient means at hand to provide for her support and could not be a dependent within the meaning of our Act. It is true that "one cannot be said to be a dependent who has sufficient means at hand for supplying present necessities, judging these according to the class and position in life of the alleged dependent." Blanton v.Wheeler Howes Co., 91 Conn. 226, 231, 99 A. 494. But the mere existence of a right to compel, by process of law, one to furnish support to another, will not by itself determine that such an one has a present and a continuing means of support so that he cannot be held to be the dependent of one who has contributed to his living expenses.

The purpose of the Compensation Act is to provide support to dependents of one injured in industry. A dependent is one who has relied upon the decedent for support and who has a reasonable expectation that such support will continue. 28 Ruling Case Law, p. 770, § 65. A legal obligation cannot be construed to be the equivalent of a present support. When it has been enforced it becomes such for the time. It does not follow that it will continue. A condition of dependency presupposes contributions made to and relied upon by the dependent. Such condition under our law could be found only when contributions had been in fact made, and there was a reasonable probability that these would be continued, and that the contributions so made and to be made were relied upon by the claimant-dependent. If no contributions had been made, or if there was no reasonable probability of the continuance of the contributions, the basis of dependency would be absent. So, if the legal obligation had not been relied upon by the claimant-dependent for his means of living, it could not be a factor in determining the question of dependency. Sweet v. SherwoodIce Co., 40 R. I. 203, 100 A. 316.

The Compensation Act provides compensation not only for dependents who had the legal right to compel support from a deceased, but also for dependents who received support from the voluntary contributions of the deceased. For each class its test is "whether the contributions were relied upon by the dependent for his or her means of living, judging this by the class and position in life of the dependent." Powers v. HotelBond Co., 89 Conn. 143, 152, 93 A. 245; Blanton v.Wheeler Howes Co., 91 Conn. 226, 229, 99 A. 494;Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 258,96 A. 1025. A mere legal obligation of one to support another does not under this test make him a dependent of the one under the legal obligation. Sweet v. SherwoodIce Co., 40 R. I. 203, 100 A. 316; Parson v.Murphy, 101 Neb. 542, 163 N.W. 847; Grant v. Kotwall,133 Md. 573, 105 A. 758; Conners v. PublicService Elec. Co., 89 N.J.L. 99, 97 A. 794. The conclusion of dependency was one of fact, and one which might logically and reasonably have been drawn.

There is no error.

In this opinion the other judges concurred.