Burns v. Connecticut Light & Power Co.

118 A. 45 | Conn. | 1922

The plaintiff applied for and was awarded compensation as a partial dependent on her son, Robert T. Burns, who died as the result of an injury arising out of and in the course of his employment by the defendant.

The reasons of appeal relate to the conclusion that upon the facts found the plaintiff was a partial dependent on the deceased; and to the extent of the dependency, if any.

As to the conclusion of partial dependency, the defendant relies on Atwood v. Connecticut Light PowerCo., 95 Conn. 669, 112 A. 269, in which we said, p. 676, that "the finding is not susceptible of other interpretation than that the plaintiff did have sufficient means at hand for supplying the present necessities of himself and family, judging these according to his class and position in life." The defendant claims that the same may be said of the finding in this case; but we do not agree with that claim. It is found that the plaintiff is a widow owning an undivided one-third interest in two houses which are worth $12,000. She and six children living at home occupy the first floor of the larger house. All of the children except the youngest, who is sixteen years old, pay board, and the plaintiff's gross income from this source is $43 a week. How much of this is available as net profit for the support of the plaintiff and her youngest daughter, who pays no board, is not found, unless some inference may be drawn from the finding that the board of the deceased, who paid $15 a week, was worth $11.

The plaintiff's only other sources of income are from $400 in a savings-bank, and the equivalent of $15 a month received in the form of reduced rent on account of her undivided one-third interest in the two houses. There is nothing in these findings which puts the plaintiff beyond the pale of dependency, nor is it a fatal omission that there is no specific finding as to the amount reasonably required to supply the present necessities of the plaintiff. Dependency is a fact, and it may be proved as a fact without an arithmetical demonstration.

In measuring the extent of the dependency, the Commissioner included $4 a week paid by the deceased in excess of the worth of his board, and $10 a month contributed by him toward rent. These items are hardly disputable after the fact of partial dependency is established. The same is true of a contribution of $150 for clothing for the plaintiff and of certain minor items, making a total annual contribution of $497.90, which we regard as allowable beyond question. Certain other items allowed by the Commissioner have been disallowed by the Superior Court and are out of the case.

Those which remain and require notice are as follows: $30 for the plaintiff's telephone bill; painting three rooms $30 and $8.50 for brushes for same, and $200 representing the cost of clothing for the youngest daughter, Catherine.

No error is apparent in allowing the telephone bill of $30. The Commissioner has found, in paragraph 13 of the finding, that the plaintiff relied on the deceased to maintain herself in her class and position in life to the extent of $17.68 a week; and this sum includes all of the items allowed by the Commissioner. A motion to strike out paragraph 13 was denied, and it must stand as a finding that the plaintiff relied on each and every item allowed by the Commissioner. That being so, and the telephone bill being in the nature of a continuing expense, we cannot say that it was not an allowable item.

The item of $38 for painting three rooms and brushes for same, stands on a different footing. It is not a continuing or an annual recurrent expense, and the defendant ought not to be charged on the theory it was such.

As to the item of $200 for clothing for Catherine, it appears that she was sixteen years old at the date of the award, and by statute conclusively presumed to be wholly dependent on the plaintiff.

The Commissioner has practically found, in his second memorandum of decision, that $200 a year for clothing is necessary and suitable for such a girl according to present prices and standards of living; and we cannot say that this finding is erroneous. Though the money was given to Catherine, it was, because of her total dependency, a contribution toward the living expenses of the plaintiff. It is contended that any allowance for the cost of Catherine's clothing should be limited to the period of her statutory total dependency on the plaintiff, and that the award is erroneous because it continues beyond that period. This contention, if sound, would apply to the entire cost of supporting Catherine. It cannot now be foretold whether or not the extent of the plaintiff's dependency on the deceased will change when Catherine reaches the age of eighteen. Whether it does, and if so, to what extent, will be questions of fact for the Commissioner to pass upon, if and when they arise. In the meantime, the award must stand, for the error in including the item of $38.50 for painting and brushes does not affect the result; because, after deducting that item, the average weekly contribution of the decedent, on which the plaintiff relied, still exceeds one-half of his average weekly wage.

The defendant's claim that it is inequitable to measure the dependency by including contributions made while the deceased was receiving a higher wage than that earned at and for some time before the injury, is not well founded, because the statute mitigates any possible inequity in such cases by limiting the maximum award to one half of the average weekly wage earned in the six months next preceding the injury, and in this case the result is that the award is based wholly on the lower wage.

There is no error.

In this opinion the other judges concurred.