Smith v. Travelers Insurance Co. , 71 Ga. App. 24 ( 1944 )

1. Where an award was made to the partial dependents of a deceased employee for the full amount permissible under the law, based on the highest proved amount of contribution made by the employee, the superior court did not err in reversing the award and remanding the case to the compensation board to make proper deduction for board and lodging received by the employee from the common-family fund to which he contributed.

2. The court did not err in holding that there was sufficient evidence to authorize a finding that the mother was partially dependent on the employee, her deceased son.

DECIDED APRIL 8, 1944. This is a workmen's compensation case. Fred C. Smith, the employee, aged 24, was killed by an accident arising out of and in the course of his employment. His mother, Mrs. Fred C. Smith, an invalid sister, Miss Cornelia Slaton Smith, and another sister, Miss Katheryn Lang Smith, filed their claim for compensation as dependents of the deceased employee. The hearing director held that the mother and the invalid sister were partially dependent on the deceased employee, and awarded compensation in the amount of $8.50 per week, which was for 85 per cent. of half of $20, the sum found to have been the weekly contribution to the dependents at the time of the employee's death. The board affirmed the award. The employer and the insurance carrier appealed to the superior court, contending: (1) that the mother was not dependent, and (2) that the compensation board failed to deduct and make allowance for the board and lodging of the employee, who lived with his mother and sisters. The court sustained the second ground of the appeal, and remanded the case for proper deduction for the employee's board and lodging, and denied the appeal as to the other ground. There was no appeal from the board's finding that Katheryn Lang Smith was not a dependent. The mother and the invalid sister excepted to the judgment of the superior court, and the employer and insurance carrier brought a cross-bill of exceptions, assigning error on the affirmance of the ruling that the mother was a dependent. 1. The court did not err in reversing the award and remanding the case for further consideration and directing that proper allowance be made for the board and lodging of the deceased employee. It stands to reason that the mother and the invalid sister can not be said to have been dependent on the adult son and brother in the amount of the reasonable cost of his board and lodging, of which he was the sole recipient. See Barker v. Reynolds, 94 Ind. App. 29 (179 N.E.. 396).

2. Nor did the court err in holding that the board was authorized to find that the mother was partially dependent on the deceased. Mrs. Smith testified that she and the decedent and her two daughters lived in an apartment in Athens, Georgia; that she worked as a practical nurse and earned as much as $10 a week; that Katheryn was 19 years of age, in good health, and a student at the University of Georgia; that the deceased did not pay board, but would give the witness from $15 to $20 each week, depending on whether he was at home or away from home; that when he was away from home working, his board and lodging were furnished him, and he was able to contribute the larger amount; that the contributions were used for the support and maintenance of the family, including the deceased when he was at home, and for the support, maintenance, and education of Katheryn; that the deceased also gave money directly to Katheryn for her clothing and school-books, and permitted her to borrow money with which to help defray her college expenses; and that it cost $35 a month for the support, maintenance, and education of Katheryn. The contention of the employer and the insurance carrier is that if the mother had not contributed to the support and education of Katheryn, not a dependent, she would not have been dependent upon the deceased. We do not agree with such a conclusion. The effect of the arrangement was that Mrs. Smith, in spending money upon Katheryn, used that much less of the money paid her by her deceased son, after allowance of his board and lodging, for the support of herself and her invalid daughter. The spending of the money for Katheryn's support did not render Mrs. Smith independent, as claimed by the employer and the insurance carrier. Dependency is a question of fact, except where the law specifically creates a presumption in favor of named classes; and the question is one to be determined according to the facts and circumstances of each case, from the amounts, frequency, and continuity of actual contributions of cash or supplies, the needs of the claimants, and the legal and moral obligation of the employee. See MarylandCasualty Co. v. Campbell, 34 Ga. App. 311 (129 S.E. 447);U.S. Fidelity c. Co. v. Washington, 37 Ga. App. 140 (139 S.E. 359); Georgia Power Light Co. v. Patterson, 46 Ga. App. 7 (166 S.E. 255); Glens Falls Indemnity Co. v. Jordan,56 Ga. App. 449 (193 S.E. 96).

Judgment affirmed on both main bill and cross-bill ofexceptions. Sutton, P. J., and Felton, J., concur.