Rudnick v. White Bros., Appeal No. 143

Appeal No. 143 | Del. Super. Ct. | May 13, 1920

The general character of the testimony on the question of dependency is sufficiently shown in the opinion of the court.

Per Curiam:

[1] While the case before the court is very much like the case of Shaw Co. v. Palmatory, 7 Boyce, 197, 105 Atl. 417, in its facts, we think there is sufficient dis-similarity to distinguish the one from the other.

In the Palmatory Case, in which the board found there was dependency, the testimony on material points was reasonably definite and clear, while in the present case it is exceedingly vague and uncertain. It does not appear how much the father made in his business, or why he did not contribute more to the support of his family. While it was shown that practically all of the son’s wages were given to his mother it is not clear that any part was required or used for the actual support of his father and mother, The son was living at home and we do not know how much of his income was used for his own requirements, viz. for board, clothing, insurance and other expenditures. There was really no proof of dependency except the assertion of the father and mother, uncorroborated by any other testimony, or any facts or circumstances from which the board could be clearly satisfied there was dependency.

Against the testimony that was given by the father, mother, and sister to show dependency, we have certain facts which strongly indicate there was no dependency within the meaning of the law, viz.:

The father is in the prime of life, forty-two years of age, in good health, and able to follow his occupation all the time; the mother is also well and strong, and the sister making her own living away from home, receiving one hundred and twenty dollars per month, and contributing nothing to the support of her parents. Presumably they were in no wise dependent on her wages. But the conclusion of the court in the present case can be reconciled with the decision in the Palmatory Case on another and more important ground.

[2, 3] We cannot agree with the contention made by counsel for the employer, that—

“If the board found as a fact that dependency did not exist this court cannot review or reverse the finding of fact thus made.”

The question of dependency is not entirely one of fact. But we do think that where the board has found and determined that dependency did not exist this court should not reverse that finding unless it clearly appears that under the testimony it could not be reasonably made. This court should be as slow to reverse a decision of the Industrial Accident Board as it is to set aside the verdict of a jury in a civil cause. The verdict of a jury is never set aside, as being against the evidence, if there was any testimony which would reasonably warrant the verdict. Such is the rule the court uniformly follows, and we think a rule equally as strong should be adopted in appeals from the Industrial Accident Board. Applying such a test it is manifest that the court were right in affirming the decision of the board in the Palmatory Case, and would be right in affirming the finding in the present case. It must be admitted that both were close cases on the facts, difficult for the court to decide with only the record before them, and under such circumstances the court should refuse to reverse the action of the board, who had the witnesses before them, just as they would refuse to set aside the verdict of a jury in a similar case.

The award of the board is affirmed, and the costs of the appeal are awarded and taxed against the appellees.