135 A. 437 | Conn. | 1926
It appears from the finding that John F. Draus, a minor son of the claimant, died July 26th, 1925, from pulmonary tuberculosis; that he left surviving him besides his mother, brothers and sisters of the ages, respectively, of twenty-two, twenty, sixteen and fourteen years, also his father, who had not been living with his family for three years and had not in that time contributed anything to the family support; that the claimant was dependent entirely upon the contributions of her children and had no other means of support; that the two older children paid her $10 each per week for board and room, and the two minor children who were working — one of whom was the decedent — gave her all their wages, those of the decedent being $20 per week. The decedent received from his mother, his board and room valued at $10 per week and spending money of $1.50 per week. It further appears that the decedent applied for compensation, and a finding and award was made by the commissioner February 3d 1925, in which finding it was held that the tuberculosis which caused the death of the decedent was caused by the conditions of his employment, and that he had received an injury arising out of and in the course of his employment. These facts were incorporated in the present finding by reference to the previous finding and award and without further hearing *418 thereon. It is also recited in the present finding that the respondent moved that the finding of February 3d 1925, be modified and corrected on the grounds that the tuberculosis was communicable and so within the exception of the Compensation Act, and also that the finding and award of February 3d 1925, should not be considered in this case, but that the question of the origin and cause of the tuberculosis should be heard de novo. The commissioner overruled both these claims. The award to the claimant was $8.50, and both respondent and claimant then appealed to the Superior Court, where the award was confirmed, and both then appealed to this court.
The respondent assigns three reasons of appeal, namely: that the Superior Court erred (a) "upon the facts found in sustaining the award of the commissioner for compensation to Catherine Draus"; (b) "in overruling the claim of the respondent that the claimant was not entitled to compensation upon the facts found"; and (c) "in sustaining the finding and award of the commissioner in awarding the claimant, Catherine Draus, compensation in view of the fact that said John F. Draus, deceased, was a minor whose father was living at the time of his death." The first two assignments do not inform us of the specific error which the respondent claims to have been committed by the Superior Court. These assignments are too general and do not require consideration in this court. "It has been repeatedly held by the courts of this State that claims of law are limited to those made upon the trial of the case in the court below, and to those specifically made in the assignments of error." Fidelity CasualtyCo. v. Palmer,
The finding shows that the commissioner, over the respondent's objection, incorporated the February 3d finding in the present finding by reference without further hearing. This ruling of the commissioner was not specifically appealed from by the respondent, but is, by the Superior Court in its memorandum of decision of August 3d 1926, found to be correct. We need go no further with this phase of the case, than to say that the conclusions of the Superior Court in this regard were correct. Biederzycki v. Farrel Foundry Machine Co.,
The respondent's third reason of appeal fairly raises the question whether the claimant could, under the facts found, be held to be a partial dependent of her decedent minor son. It appears that the father had been separated from the family for more than three years and had contributed nothing to its support and this was the situation when the decedent died. The obligations of a minor to his parents are obedience and subjection, and his earnings, if any; while those of the parents are protection, education and support. This was true at common law, so far as the father was concerned, *420
and these obligations are strictly reciprocal. By our statute, the obligations of the mother and the rights of guardianship are now the same as the father's and the "powers, rights and duties" of father and mother are equal. General Statutes, §§ 4861, 1650. "If the right to receive the earnings of minor children, which is conceded to the father, be made to rest upon the liability of the father for their support, the mother, having the same liability, should be entitled to the same right. . . . It is difficult to imagine any grounds on which the right of the father to the earnings of minor children can be placed, which do not apply with equal or greater force in support of the right of the mother." Matthewson v. Perry,
Both the dependency and the extent of it were conclusions drawn by the trial court from the subordinate facts, and as such, reviewable questions in this court upon this appeal. It is found as a fact that the claimant had no other means of support than the contributions made to her by her children, and the decedent contributed $20 per week, his entire earnings. The other children contributed various amounts; the two who were of age each gave $10 per week for board and rooms, while the two minors who were working, including the decedent, contributed their entire earnings. The injury complained of occurred in 1924, and the rights of the claimant are determined by the provisions of General Statutes, § 5349, as amended by the Public Acts of 1921, Chapter 306, § 4, which provided: "Compensation shall be paid on account of death resulting from injuries within two years from date of injury as follows: . . . (b) to those wholly dependent upon the deceased employee at the time of his injury, a weekly compensation equal to half of the average weekly earnings of the deceased at the time of the injury; (c) in case there is no one wholly dependent upon the deceased employee, to those partially dependent *422 upon the deceased employee at the time of his injury, a weekly compensation equal to half of the average weekly earnings of the deceased at the time of the injury, provided the amount so paid shall not be more than eighteen dollars weekly, nor less than five dollars weekly, nor, if the average weekly sum contributed by the deceased at the time of the injury to those partially dependent be more than five dollars weekly, not more than said sum so contributed; but the compensation payable on account of death resulting from injuries shall in no case be more than eighteen dollars or less than five dollars weekly. . . ." The commissioner and the Superior Court took the view that the amount of the decedent's contribution, or the statutory measure of the claimant's dependency upon the decedent, was the net benefit which she received from the decedent, and accordingly deducted from the $20 which he gave her, $1.50 for the spending money and $10 for the board and room, leaving $8.50 per week as the extent of the decedent's contribution.
It is obvious that the statute permits an award of not more than one half of the weekly wages of the decedent, which would be $10. If the commissioner and the Superior Court were correct in holding that the measure of the dependence was the net benefit which the dependent received from the decedent's payment, then the award of $8.50 per week was correct. If, on the other hand, the measure of the dependence or the amount contributed, was the total amount actually received from the decedent, the award should manifestly have been one half of the weekly wages as required by the statute. In Mahoney v. Gamble-DesmondCo.,
Such amendments to the 1913 statute as were in force at the time of this decision, do not affect the principle here laid down and the reasoning employed applies with equal force to the case under consideration. The amount contributed by this decedent, or the measure of the claimant's partial dependency, was $20 per week, and under the statute then in force, the award should have been $10 per week instead of $8.50.
There is no error upon the respondent's appeal. There is error upon the claimant's appeal and the cause is remanded to the Superior Court with direction to sustain the appeal and return the case to the commissioner for the entry of a finding and award in accordance with this opinion.
In this opinion the other judges concurred.