Summary
In Mid-State Paving Co., supra, the parents were found partially dependent upon their deceased son's earnings where the proof disclosed that the son claimed his parents as dependents on his federal income tax returns, made cash contributions to his parents on numerous although irregular occasions for many years, performed the heavy manual labor on the 60-acre farm and frequently bought groceries.
Summary of this case from Union Camp, Inc. v. Dependents of McCallOpinion
No. 40751.
April 14, 1958.
1. Workmen's compensation — evidence — sustained finding that parents were partially dependent on son.
In proceeding by parents for compensation for death of 35 year old son who had lived on farm with parents for all of his life except for brief period of his unsuccessful marriage, evidence relating to son's cash contributions to his parents on numerous though irregular occasions and to son's doing the heavy manual labor on the farm sustained finding that parents were partially dependent on son at time of his death and that they had reasonable grounds to anticipate continuing future support from him.
2. Workmen's compensation — term "dependent" liberally interpreted — includes those partially dependent.
For purposes of award of workmen's compensation benefits to dependent or deceased employee, the term "dependent" must be liberally interpreted, and includes those partially dependent as well as those wholly dependent, and one is dependent if he relies upon the employee, in whole or in part, for his support.
3. Workmen's compensation — dependency — contributions to claimant at irregular intervals or in differing amounts.
In determining whether claimant is a dependent entitled to compensation for death of employee, it is immaterial that employee's contributions to claimant were made at irregular intervals or in differing amounts.
4. Workmen's compensation — dependency — purpose of statute.
The purpose of statutory provisions relating to award of workmen's compensation benefits to dependent of deceased employee is to provide the employee's dependent in the future with something in substitution for what has been lost by employee's death.
5. Workmen's compensation — dependency — reasonable grounds to anticipate future support from employee.
Claimant seeking award of compensation as dependent of deceased employee must show that he had reasonable grounds to anticipate future support from the employee.
6. Workmen's compensation — statutory damages — interest — attorney's fees.
On affirmance of an award of workmen's compensation benefits to parents of deceased employee, parents were entitled to 5 per cent statutory damages on all installments which had become due and remained unpaid and to 6 per cent interest on such unpaid installments and their attorneys were entitled to fees in amount of one-third of award.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Holmes County; ARTHUR JORDAN, J.
Vardaman S. Dunn, Jackson, for appellants.
I. There is no substantial evidence to establish dependency of appellees as the parents of the deceased employee and the Circuit Court erred in affirming the Commission award and in failing to dismiss the claim of appellees. Aultman v. Crosby Chemicals, Inc. 222 Miss. 98, 75 So.2d 458; Bolton v. Easterling, 232 Miss. 236, 98 So.2d 658; Bradshaw v. Rudder, 227 Miss. 143, 85 So.2d 778; Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So.2d 830; Sec. 6998-13(g), Code 1942; Dunn, Mississippi Workmen's Compensation, Law and Practice, Sec. 136.
Arrington Arrington, Hazlehurst, for appellees.
I. The Mississippi Workmen's Compensation Commission found that the appellees were partially dependent upon the deceased workman, their son, and said finding is supported by substantial evidence, wherefore the award based thereon should be affirmed. Bradshaw v. Rudder, 227 Miss. 143, 85 So.2d 778; California Eastern Airways, Inc. v. Neal, 228 Miss. 370, 87 So.2d 895; Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Sunnyland Contracting Co. v. Davis, 221 Miss. 744, 74 So.2d 858, 75 So.2d 923.
II. The Honorable Circuit Court of Holmes County, Mississippi erred in failing to order the attorney's fee approved by the Workmen's Compensation Commission be paid in a commuted lump sum.
(Hn 1) The attorney-referee, Workmen's Compensation Commission and the circuit court successively awarded dependency benefits under the Workmen's Compensation Act to appellees J.W. Farthing and wife. Their son Thomas Farthing was killed on October 4, 1955, as the result of an accident arising out of and in the course of his employment with appellant Mid-State Paving Company. The only question on this appeal is whether the finding of the Commission that appellees were dependents of the deceased employee is supported by substantial evidence.
Appellees, in their late sixties, live on their 60-acre farm in Holmes County. Thomas was 35 years of age at the time of his death in October 1955. He married in March of that year and separated from his wife not later than September 1955. Before his marriage he made his home with his parents, except for periods of time when he was working on construction project as a common laborer. Thomas was the only one of appellees' four children who helped them. The record reflects that he claimed them as dependents in naming his federal income tax exemptions. He made contributions in cash to his parents on numerous although irregular occasions, and had been doing so for many years. He did the heavy manual labor on the farm, and frequently bought groceries for them. After his separation from his wife, Thomas was planning on coming home and resuming his old relationship with his parents, but death intervened. He had remained single and lived on the farm with his parents all of his life, except for the brief period of his unsuccessful marriage. Certainly he helped and assisted them in every way a son can, within his abilities, and he continued to do that after his marriage.
(Hn 2) The term "dependent" must be liberally interpreted, and includes those partially dependent as well as those wholly dependent. So one is dependent if he relies upon the employee, in whole or in part, for his support. Deemer Lbr. Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634 (1951), in which a father was found to be partially dependent on his son, is on its facts persuasive in this case. (Hn 3) Where reliance is placed upon the deceased employee to provide the applicant for compensation, in some measure or to some extent, with his or her future living expenses, it is not material that the contributions were made at irregular intervals or in different amounts. (Hn 4) The statute's purpose is to provide the workman's dependent in the future with something in substitution for what has been lost by the workman's death. (Hn 5) Claimant must show that he had reasonable grounds to anticipate future support from the decedent. This reasonable expectation of continuing future support and maintenance is the principal criterion. 58 Am. Jur., Workmen's Compensation, Sec. 162.
Dunn, Miss. Workmen's Compensation, (1957) Sec. 136, makes this further observation: "However, if the test, above stated, is met by one claiming partial dependency, it is not material (1) that contributions are made or expected at irregular intervals, or (2) that the claimant was able to maintain himself, or (3) that claimant was possessed of some property, or (4) that claimant was supported in part by others or from other sources, or even (5) that the claimant had an income which exceeded that of the employee. The support requirement, moreover, does not mean that claimant must show that he will be destitute and without the bare necessities of life." See also Bradshaw v. Rudder, 85 So.2d 778, (Miss. 1956), where a father and mother were held to be dependents of a minor unmarried son. Cf. Fernwood Industries, Inc. v. Mitchell, 219 Miss. 331, 68 So.2d 830 (1953); Aultman v. Crosby Chemicals, Inc., 222 Miss. 98, 75 So.2d 458 (1954).
Considering these criteria under the statute, in the light of the facts outlined above, it is manifest that the Commission was warranted in concluding that appellees were partially dependent upon their son Thomas at the time of his death, and that they had reasonable grounds to anticipate continuing future support from him. Accordingly, they were his dependents within the terms of the Act.
(Hn 6) Appellees' motion for 5 percent statutory damages on all installments which have become due and now remain unpaid, and 6 percent interest on these unpaid installments is sustained. Sunnyland Contracting Co. v. Davis, 221 Miss. 756, 75 So.2d 923 (1954). The same pleading contains a motion for attorneys' fees in the amount of one-third of the award, which is sustained. The judgment will allow the same as full compensation for all services rendered in this case by appellees' attorneys, with the fee to be computed and allowed in the manner and form set forth in Sunnyland Contracting Co. v. Davis, 221 Miss. 755, 75 So.2d 638 (1954).
On the merits, affirmed and remanded to Workmen's Compensation Commission; motion for statutory damages, interest and attorneys' fees sustained.
McGehee, C.J., and Lee, Kyle and Gillespie, JJ., concur.