75 So. 2d 458 | Miss. | 1954
The sole question presented in this case under the Workmen’s Compensation Law is whether or not the appellant, Yirgie Aultman, who is 34 years of age and the unmarried feeble-minded daughter of the deceased employee, Leo Autman (or Leo Aultman or Cleo Aultman), and who is incapable of self-support on account of mental disability, was wholly dependent upon the employee father within the meaning of Section 6998-02, Code of 1942 as recompiled, and which declares, among other things, that ‘Child,’ ‘grandchild,’ ‘brother,’ and ‘sister’ include only persons who are under eighteen (18) years of age, and also persons who, though eighteen (18) years of age or over, are wholly dependent upon the deceased employee and incapable of self-support by reason of mental or physical disability.”
It is shown by the proof that the appellant, Yirgie Aultman, is the legitimate daughter of the deceased employee and Roberta Aultman; that her parents separated about 22 years prior to the death of the said employee, and that they were never divorced; that within a very short time thereafter the husband left Covington County where he and Roberta were residing and took up his abode at Picayune, in Pearl River County; that the husband celebrated a ceremonial marriage about twenty
The foregoing facts were shown by the testimony of Tom Aultman, the paternal grandfather, and that of Bill Boykin, of Robert Aultman, and of Bessie, the second wife of the employee, who lived with him for nearly twenty years prior to his death, as aforesaid. Robert did testify that after the death of his mother, Roberta, there were contributions made by Leo or Cleo Autman (or Aultman) for the support of the claimant Yirgie, which Robert estimated to be approximately $250 or $300 per year, but Bessie, the wife of the said employee, testified that she was handling the pay check of the employee during all this period of time and that she would give Robert five or ten dollars at a time, and on one occasion the sum of $30, when Robert would come to see his father at Picayune, and that from time to time she would send five or ten dollars to Robert for the support of Yirgie, and she was positive that the sums contributed would not aggregate more than $50 per annum. Bessie was unable to dispute the testimony of Robert to the effect that about one month prior to
Upon the conflicting testimony about the amount contributed annually by the employee for the support of his daughter, the claimant Virgie, the attorney-referee held that the evidence was insufficient to show that this claimant was wholly dependent upon her father within the meaning of Section 6998-02, Code of 1942, supra. This finding of fact by the attorney-referee was affirmed by the full commission and also by the circuit court. We assume that the attorney-referee and the commission adopted, as true, the testimony of Bessie as to the extent of the contributions made by her for the employee, since the testimony of Robert appears to be unsatisfactory in that he received most of the contributions by unregistered mail and kept no account thereof, and was merely giving an estimate of the amount contributed annually. At any rate, we would not be justified in reversing the finding of the attorney-referee, affirmed by the full commission and by the circuit court on this issue of fact.
We have carefully considered the cases cited and the excerpts quoted from the text writer, Larson, by the claimant in her brief, and while her claim has a strong appeal to us in the light of the humanitarian purpose of the Workmen’s Compensation Law, we are nevertheless of the opinion that it does not come within the requirement of the statute in question that she be wholly dependent upon the employee for support.
If it had been her brother Robert who had been killed by an accident that occurred in the course of his employment, and he had been covered by the Workmen’s Com
We have carefully considered the cases of Deemer Lumber Co. et al. v. Hamilton, 211 Miss. 673, 52 So. 2d 634, and Watkins et al. v. Taylor et al., 216 Miss. 822, 63 So. 2d 225, and are of the opinion that those cases are clearly distinguishable on their facts from the instant case. The Deemer case did not involve a child, grandchild, brother or sister, such as are dealt with in Section 6998-02, Code of 1942, supra; and the Taylor case involved minor children. In neither of those cases-was the claimant required to be “wholly dependent” as is required by the above mentioned statute in regard to a child over eighteen years of age and Avho is “incapable of self-support by reason of mental or physical disability. ’ ’
Nor do Ave think that the isolated cases referred to by Larson on Workmen’s Compensation Law, Vol. 2, Sec. 63.13, are in line with the Aveight of authority. Moreover, that text states that: “Even total dependency is consistent with the receipt of some other income, if insubstantial or sporadic.” This statement Avould sustain the idea that the claimant in the instant case was totally dependent upon her brother Robert, and that this fact is consistent Avith the receipt of the insubstantial or sporadic contributions made by her father.
The record does not disclose whether or not the death of the employee was due to the negligence of the employer. If such were the fact, then the effect of the Workmen’s Compensation Law would be to deprive this legitimate daughter of the deceased employee of her right of recovery under our “wrongful death” statute; and if such were the case, it would seem to the writer of this opinion (expressing only his own view) that our Workmen’s Compensation Law should have been so written as to make the claim compensable, in response to the dictates of humanity. But the law is not so written; and while the claim makes a strong appeal to the Court, we are of the opinion that it is not compensable, but that the award of the entire death benefits in favor
Affirmed.