41 S.E.2d 810 | Ga. Ct. App. | 1947
Lead Opinion
1. (a) Partial dependency is to be determined by all the facts and circumstances of each particular case. "Standard of living" is a generic term and presents a question of fact rather than of law, where the evidence is sufficient to sustain a finding of dependency.
(b) Where, as here, the claimants own property, some of which is encumbered, and a substantial portion of the income from the property is necessary *693 to maintain the property and pay off encumbrances thereon, taxes, etc., these expenditures may be considered in determining whether the claimants were dependent upon the monthly contributions of the deceased unmarried son to maintain their ordinary standard of living.
(c) Under the facts, the award is not based on any erroneous theory of law.
"The director finds from the stipulation of the parties that the deceased, Irvin Sanders Bernstein, met with an accident arising out of and in the course of his employment on April 10, 1944, said accident resulting in personal injuries from which he died the same day, and that at the time of his accident and death he was earning a regular weekly salary of $68.45.
"The director further finds that the employer has reimbursed the father claimant, Benjamin Bernstein, the sum of $100 the father had expended on the deceased son's funeral, representing funeral expenses in accordance with the provisions of the statute.
"The only question remaining before the undersigned director for determination being that of partial dependency as defined in § 114-414 of the statute. The director finds from the undisputed testimony of the father and mother of the deceased employee that *694 they were partially dependent as contemplated under the provisions of the above quoted section of the Workmen's Compensation Act.
"The director finds from the testimony of both of these claimants, which was undisputed, that the deceased son regularly contributed an average of $150 per month to the father and mother and that this state of dependency had existed for a period prior to the accident of as much as three months as is set out by the statute. The testimony of the father and mother will show that these contributions were being used by the claimants for a part of their maintenance and subsistence. There was no evidence offered that the contributions were to be used for any other purpose such as a loan or money to be put away for future use by the deceased son but the evidence of the mother and the father clearly shows that they actually needed the contributions to maintain their standard of living. The evidence of the father will show that although a good deal of money was invested in real estate holdings he only filed a return to the Federal Government for income taxes on three thousand dollars. In the case of GlensFalls Indemnity Co. v. Jordan,
"The director finds from the language of the Court of Appeals as above quoted that the case cited clearly parallels the within claim. `The question of dependency is one of fact, to be determined according to the facts and circumstances of each particular case, from the amounts, frequency, and continuity of actual contributions of cash or supplies, the needs of the claimant, and the legal *695
or moral obligation of the employee.' Maryland Casualty Co. v.Campbell,
"The director finds that the undisputed facts as testified to in the within claim are such that the director could make no other finding except that the mother and father were partially dependent upon their deceased son as contemplated under the provisions of the Workmen's Compensation Act and later as substantiated by the appellate courts as in the above quoted decisions, and as such partial dependents, Sarah and Benjamin Bernstein, father and mother claimants, would be entitled to recover as set out in the above-quoted statute."
(a) The question of dependency is one of fact and not of law. The court said in Georgia Power Light Co. v.Patterson,
(b) Counsel for the employer and carrier contend (1) that the testimony of the claimants is conflicting and that the hearing director illegally resolved facts in favor of the claimants who were the only witnesses; (2) that the conclusions in the testimony of the claimants are without facts upon which to base them. In support of this contention our attention is called to the case of Georgia *696 Southern Fla. R. Co. v. Overstreet,
(c) Counsel for the carrier contend that the award was based on an erroneous theory of law. Our attention is called toWilliams v. American Mutual Liability Ins. Co.,
In view of the authorities herein cited and those referred to in that portion of the award which we have set out above, the court did not err in affirming the award.
Judgment affirmed. Sutton, P. J., MacIntyre and Felton, JJ.,concur. Broyles, C. J., and Parker, J., dissent.
Dissenting Opinion
The claimants, Mr. and Mrs. Bernstein, were the only witnesses in this case, and their testimony as to their dependency was vague and contradictory, and based to a great extent upon their mere conclusions; and it is well settled that, where the plaintiffs are the only witnesses in a case, their testimony should be construed most strongly against them; and they are not entitled to a recovery if that version of their testimony most *699
unfavorable to them shows that the verdict should be against them. Turnmire v. Higgins,
The undisputed testimony of the claimants showed that they possessed real estate of the value of $50,000, and had an annual income of $5250, exclusive of their son's annual contribution to them of $1800; that Mrs. Bernstein handled all of their income, including the son's contribution, as a common fund. And yet the hearing director stated: "The testimony of the father and mother will show that these contributions [of the son] were being used by the claimants for a part of their maintenance and subsistence . . and clearly shows that they actually needed the contributions to maintain their standard of living." The director further found: "The evidence of the father will show that although a good deal of money was invested in real estate holdings he only filed a return to the Federal Government for income taxes on $3,000." And yet Bernstein's own testimony disclosed that his income return should have been based on $5250. It is evident that the director erroneously construed the testimony of the plaintiffs most strongly in their favor; when, under the law, he should have construed it most strongly against them. And it is well settled that a finding in a compensation case based upon an erroneous theory of the law is reversible. Bibb Mfg. Co. v. Alford,
Furthermore, under the undisputed testimony of the claimants they are not in a class where dependency is conclusively presumed as a matter of law, and the burden is upon them to clearly establish their dependency by proof. Code, § 114-414; Barnett
v. American Mutual Liability Ins. Co.,
Moreover, the claimants failed to state how much money it took to maintain their "standard of living," and there is nothing in the evidence to show their standard of living.
The director further stated: "The undisputed facts as testified to in the within claim were such that the director could make no other finding except that the mother and father were partially dependent upon their deceased son." That finding was evidently based upon the erroneous theory of law that the testimony of the claimants on the subject of their dependency should be construed most strongly in their favor; when, under the law and the facts of the case, it should have been construed most strongly against them.
Furthermore, it appears that the claimants had a $13,000 mortgage on a $50,000 building, one half of the building being owned by them and the other half by another son, Norman, and that claimants were reducing the mortgage by $1000 yearly, by paying $500, one half of that amount, from the common fund (which included their son's contribution) handled by Mrs. Bernstein, and that Bernstein's annual share of the rental of the above property was $2250; and there is a clear inference that the claimants were using that $2750 of their income for retiring the mortgage and for repairs and betterments of that income-producing property, which increased the value of the property. Certainly the amount so expended can not be held to be expended for their support. Can it be held that parents who own property of the value of $50,000, from which they derive an annual income of $5250 are "dependent" upon the $1800 contribution of their son? A deceased employee's *701
parents who have sufficient means to supply present necessities according to their class and position in life, are not "dependents" within the Workmen's Compensation Law, a "dependent" being one who is not self-sustaining, and the mere fact that parents used certain earnings of deceased does not establish dependency. Serrano v. Cudahy Packing Co.,
In my opinion, the judgment should be reversed. I am authorized to state that PARKER, J., concurs in this dissent.