LaSalle County Carbon Coal Co. v. Industrial Commission ( 1934 )

After a second hearing before the Industrial Commission, an award of $1650, payable weekly over a period of 158 weeks, was allowed to defendant in error, Matt Oven, father of Louis Oven, a coal miner, on account of the latter's death while employed by plaintiff in error, the LaSalle County Carbon Coal Company. This award was confirmed by the circuit court of LaSalle county and the cause comes here for review by writ of error. The sole question presented is one of dependency.

Louis was accidentally killed on December 19, 1928. He had never been married. Except for two months immediately prior to his death he had paid $25 a month regularly to his older brother and sister-in-law for the care and keep of his aged father. It is undisputed that his father had been unable to work or support himself for about six years. Louis had also lived and boarded at the home of his older married brother and paid $30 a month therefor until October, 1928, when he moved into other quarters. For two months following he failed to pay the $25 per month for his father's keep when it became due, but shortly before he was killed he told his father, in the presence of his sister-in-law, that when he got his first pay he would pay all arrears in board then due.

It is claimed by plaintiff in error that since Louis at the time of his death was admittedly not then contributing to the support of his father, the latter was not a dependent within the meaning of paragraphs (b), (c) and (d) of section 7 of the Workmen's Compensation act. The record discloses ample competent evidence to establish the dependency of defendant in error upon his deceased son when the latter met his accidental death. The evidence shows conclusively that the two months' break in monthly payments for defendant in error's board did not disestablish the relation of dependency which all the parties had recognized for years. The objections of plaintiff in error to testimony which consisted of a declaration by Louis two days before his death that he intended to pay his father's board were properly overruled. This testimony, in effect, established that the failure of Louis to pay for his father's support was temporary, only, necessitated by his present lack of money. It was proper, though not essential, to show the cause for the lapsed payments by the only persons who knew about it, even though other competent evidence clearly showed a continuing and long established dependency.

We have repeatedly held, especially on questions of dependency, that the Workmen's Compensation act should receive a practical and liberal construction. (Faber v. Industrial Com.352 Ill. 115; Ritzman v. Industrial Com. 353 id. 34; Marshall v. Industrial Com. 342 id. 400.) While the rules respecting the admission of evidence and burden of proof are the same under the Compensation act as at common law, (InlandRubber Co. v. Industrial Com. 309 Ill. 430, yet liability under the act cannot rest upon speculation or a choice between two views equally compatible with the evidence. (Atlas Brewing Co. v. Industrial Com. 314 Ill. 196.) Observing these principles, the competent evidence here warranted the Industrial Commission in finding that a state of dependency of defendant in error on Louis had existed for a number of years and continued to exist at the time of Louis' accidental death, and that Louis had recognized this obligation by regular contributions to defendant in error's support. That for some temporary lack of money Louis had ceased making these contributions for the time being did not alter the fact that defendant in error still depended upon Louis for his sustenance. Exclusion of the questioned testimony will not help plaintiff in error, as there is a lack of proof that the temporary failure of Louis to contribute was due to any refusal or inability on his part to continue supporting his dependent father. Dependency, once recognized and firmly established by regular contributions for support over a reasonable course of time, is not abruptly terminated by the temporary failure of the contributor to meet his obligations of support as they become due, in the absence of proof that the relationship has definitely ceased to exist by the action of one or both of the parties. The findings of the Industrial Commission will not be set aside unless manifestly against the weight of the evidence, (Peabody CoalCo. v. Industrial Com. 311 Ill. 338,) and the evidence in this case does not warrant any disturbance of the commission's order.

The judgment is affirmed.

Judgment affirmed.