Opinion
30266.
DECIDED FEBRUARY 29, 1944.
Appeal; from Columbia superior court — Judge Franklin. July 31, 1943.
Bussey, Fulcher Hardin, for plaintiffs in error.
Cohen Cohen, Frank S. Burney, contra.
1. A wife, who has not voluntarily deserted or abandoned her husband, is conclusively presumed to have been wholly dependent on him, where he dies as the result of an accident in the course of and arising out of his employment. Code, § 114-414.
2. A mother, who has not voluntarily deserted or abandoned her husband, can recover compensation for the death of her son killed as the proximate result of an accidental injury arising out of and in the course of his employment, where she is partially dependent on him. The Code, § 114-414, is not applicable.
3. Stated differently, the Code, § 114-414, is intended to apply where the wife makes a claim for compensation on account of the death of her husband, and not where she makes a claim for compensation on account of the death of her son.
4. The evidence demanded a finding that the mother was partially dependent upon her deceased son, and the State Board of Workmen's Compensation erred in finding that she was not "wholly or partially" dependent upon him. The superior court did not err in reversing the award of the board.
DECIDED FEBRUARY 29, 1944.
Annie Lou Johnson, the mother of Robert Lee Jones, filed her claim with the State Board of Workmen's Compensation against Jones, McDougald, Smith, Pew Construction Company, as employer, and Aetna Casualty and Surety Company, as insurance carrier, to recover compensation for the death of her son, Robert Lee Jones, colored, who was fatally injured in an accident on March 10, 1942, while in the employment of said company. Said accident arose out of and in the course of the employment. At the time of his death, Jones was making $16 per week. On April 16, 1943, a hearing was held, and the sole question was as to dependency. The director denied compensation. The claimant appealed to the board. The board, on May 26, 1943, affirmed the award of the director. An appeal was taken to the superior court of Columbia County, and the award of the board was there reversed. This judgment was excepted to by the employer and insurance carrier. The evidence was substantially as follows:
The claimant testified: "Robert Lee Jones was my son and he was eighteen years old. I was dependent on him, and he was helping to support me when he died; when he was killed at Camp Gordon, he was making $16 a week, and he gave all of it to me. He was paid by check, and he indorsed those checks and turned them over to me. He gave it to me every week. I cashed the checks at Waynesboro, and got all the money. Before he worked up there, he worked at Mr. Stapleton's farm, where we live. What he earned up there he brought to me. Mr. Stapleton brought it to me himself. He earned seventy-five cents a day. We were all living and working there as day labor. I worked there when Mr. Stapleton had anything to do, and when I could get any work. I hoed cotton, and picked cotton when it was time to pick; that is all I did. I was dependent on him, and he gave me all he made. When I would work, I would make fifty cents to a dollar a day. My husband's name is Percy Johnson, and he was working up there too when my son was killed. They were both making the same thing. My husband didn't support me as my son Robert did. Robert Lee Jones was not the son of my present husband. His father is Josh Shoemaker. I did not give Robert Lee away when he was about a year old. He was raised by Hannah Jones. He had been with her a good while. When he was about six months old, Hannah Jones took him. I don't know how long she kept him. When he was about sixteen, she died and Robert Lee came back. When she died, her husband kept the boy and so he got to the place where he couldn't do nothing with him and he put him out, then I took him back. He must have been about sixteen years old; that was in 1939. He had lived with me for about three years before his death. He was with Hannah until the time he came to me, when he was fifteen or sixteen years old. He did not pay board, and I fed him; gave him his clothes and everything."
Irene Everett, colored, a witness for the claimant, testified in part, as follows: "I know Annie Lou Johnson and her son, Robert Lee Jones. His mother got the money that he made. I have seen her get it. I lived in the house with them for a while. I would be in town with her when she cashed the checks and got the money; he gave her all the money. Annie Lou Johnson was married, and she is living with her husband. His name is Percy Johnson, and he was working at the camp when Robert Lee was killed. As far as I know, he was supporting her. This child was raised by Hannah Jones. I don't know when she got him but he came to his mother in 1939. He didn't pay any board."
R. L. Stapleton, a witness for the claimant, testified in part, as follows: "Robert Lee Jones, Percy, and Tom Scott all lived on my place while they worked up there. Robert Lee Jones helped me gather my crop that fall, as a day laborer. He gave his money to his mother, and I paid her a lot of times in place of paying him. Just turned it over to her. When I would pay off, I would pay her and what little she made. That was all right with him. They had been living there for some time. Annie Lou has a husband named Percy Johnson, and he is living with his wife, and working at Camp Gordon. Whenever I had any work to do, like picking cotton and hoeing cotton, she would help me. She made fifty cents a day. As far as I know, this boy was raised by Hannah Jones, but I don't know much about that. He had been back with his mother for about three or four years. He never took any money to buy any clothes or spend around town. I know I would buy the clothes for him, and she wouldn't let him pay it out of what I owed him; she paid me, that is the way it was handled with me. Percy worked for me too, as a day laborer. He only got paid for the days he worked. If it rained a whole week, he didn't get no pay. They didn't have any crop with me. He drove the tractor. Percy Johnson didn't work on the railroad. He drove a tractor. He probably has worked for the railroad in time, but I don't remember what year, 1941, or something. At the time the boy was killed, Percy Johnson was working at the camp making the same thing the boy made. Yes, sir, he drove a tractor that year. He was working at the camp with Robert Lee Jones. They went out there somewhere in the fall, I don't remember, about November. Prior to that time, the boy worked with me on the farm up through November I believe. I was gathering corn. When Percy Johnson worked, I gave him a dollar a day. While Robert Lee Jones was working for me in November, he made seventy-five cents a day. Percy made a dollar a day. Annie Lou made according to how many acres of cotton she hoed a day, about fifty or sixty cents a day. When she was picking cotton, she made a dollar a day."
1. In his award of April 16, 1943, the director made the following findings of fact: "The sole question for determination is that of dependency on the part of his mother, Annie Lou Johnson. The record shows that Annie Lou Johnson has a husband living with her and working, making a salary of $16 per week; that Annie Lou Johnson worked at times and received from fifty cents to a dollar per day. There is nothing in the record to show that the mother claimant or her husband were physically or otherwise handicapped for working. Under the Code, § 114-414, a wife shall conclusively be presumed to be wholly dependent for support upon her husband. In the instant case the deceased was reared from about the age of six months to the age of sixteen years by Hannah Jones. During this period of time he lived apart and separate from his mother. About two or three years before his death he went back to his mother, and at the time of his death was living with his mother and her husband, his step-father. Certainly, she was not dependent on him for approximately sixteen years, and even though she was his mother, he was not dependent on her over this period of years. There is nothing in the record which proves to the undersigned deputy-director that it was necessary for her to have his earnings in order to have the necessities of life. I observed from her appearance that she was in good health, of middle age, and no physical defects, thereby necessitating other support, than that of her husband. I therefore find as a matter of fact and conclude as a matter of law that the claimant, Annie Lou Johnson, was never at any time dependent upon the deceased, Robert Lee Jones, either totally or partially for support." The findings of fact by the hearing director are binding on the superior court and this court, if supported by any evidence. Independence Indemnity Co. v. Sprayberry, 171 Ga. 565, 566 ( 156 S.E. 230). The sole question in this case is whether there is any evidence to support the award.
The Code, § 114-414, reads in part as follows: "The following persons shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee: (a) A wife upon a husband whom she had not voluntarily deserted or abandoned at the time of the accident. (b) A husband upon a wife with whom he lived at the time of her accident if he is then incapable of self-support and actually dependent upon her." The director seems to have construed this section to mean: (1) That the right of a married woman to compensation for the death of a husband or son, in case of the death of the husband, unless she has voluntarily deserted or abandoned him at the time of the accident and is not at all dependent upon him in fact, is that she is conclusively presumed to be wholly dependent upon him; and (2) that in case of the death of a son, if the mother, as here, is a wife who has not voluntarily deserted her husband and is dependent upon him, she is conclusively presumed to be wholly dependent upon the husband, and is thereby precluded from receiving compensation for the death of her son. The former construction is correct, while the latter is incorrect. This Code section was intended to apply where the wife makes a claim for compensation on account of the death of her husband, and not where she makes a claim for compensation on account of the death of her son. In the instant case the husband was still living at the time of the death of the son, and in such a case, with facts as they are here, that section has no application. "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 independently 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 decedent to furnish such support. . . To argue that the mother was not dependent on the deceased because she was dependent on her husband, is taking too narrow a view of the provisions of the workmen's compensation act. True, she was not totally dependent on the deceased, but only partially dependent. However, the deceased was morally obligated to provide sufficient funds to enable her to live as her station in life authorized, and had a right to do so, and the mother certainly had the right to consider it as being for such support. Legally speaking, Mrs. Jordan could only demand a support from her husband, but this does not prevent dependency upon her son, as a fact." Glenn Falls Indemnity Co. v. Jordan, 56 Ga. App. 453, 457 ( 193 S.E. 96).
In the instant case, the mother claimed compensation on account of the death of her son. She made no contention that either she or her husband were in any way physically or otherwise incapacitated to work and make a living, and under the pleading and the evidence, there was no issue as to this. Under the facts here, their capacity to work was not material to a correct determination of the issues. Clover Fork Coal Co. v. Ayres, 219 Ky. 326 ( 292 S.W. 803); Ketchikan Lumber Shingle Co. v. Bishop, 24 Fed. 2d, 63. Irene Everett, colored, testified: "Q. Annie Lou Johnson was married, wasn't she? A. Yes, sir. Q. Her husband is living? A. Yes, sir. Q. What is his name? A. Percy Johnson. Q. Where was he working at the time Robert Lee was killed? A. He was working at the camp. Q. They were living together as husband and wife? A. Yes, sir. Q. He was supporting her? A. Yes, sir, as far as I know." We find no evidence in the record that the deceased son was not contributing to the support of his mother, or that she was not partially dependent upon him for support, unless it be from the following questions and answers: "Q. They [the mother and stepfather of the deceased] were living together as husband and wife? A. Yes, sir. Q. He was supporting her? A. Yes, sir, as far as I know." The inference which would naturally be drawn from the first part of the last answer — that the witness knew the husband was supporting his wife — was unauthorized, as shown by the latter part of the answer, and the only reasonable inference that could be drawn is that the witness really knew nothing of her own knowledge about the support of the claimant, but was merely surmising or conjecturing that the husband did what was customary, or speaking more accurately, what was his duty, and was supporting his wife. Such being the case, in the circumstances under which it was made, the statement of the witness, that so far as she knew, the husband was supporting his wife, counts for nothing. Evans v. Scofield's Sons Co., 120 Ga. 961, 962 ( 48 S.E. 358).
Since it conclusively appears from the other evidence in the case that the mother was partially dependent upon the son, and there is nothing in the evidence to contradict this, she could recover compensation for his death as the proximate result of an accidental injury arising out of and in the course of his employment; for what the defendant contends is a contradiction, as above indicated, amounts to nothing, and the evidence with all reasonable deductions demanded a finding that the mother was partially supported by the minor son, the deceased employee, and that she should be considered as partially dependent upon the son under the workmen's compensation law.
The evidence also shows that the husband and the deceased son each made a wage of approximately $16 a week; that the mother worked occasionally and made fifty cents to a dollar a day; and that the mother lived better and more comfortably as a result of her son's contribution of $16 a week, which was his entire wage. This does not destroy her claim of partial dependency, for it is enough if she depended and relied on what the son gave to enable her to enjoy the ordinary and reasonable necessities of life suitable to a person in her position. London Guaranty Accident Co. v. Hoage, 75 Fed. 2d, 236.
There was no sufficient evidence in the record to warrant the finding of the State Board of Workmen's Compensation that the mother was not a partial dependent upon her deceased son, and the superior court did not err in reversing the finding of the board.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.