56 S.E.2d 812 | Ga. Ct. App. | 1949
Where, as here, an employer and its insurance carrier are subject to the provisions of the Workmen's Compensation Law, and the deceased employee leaves surviving him a wife who has not voluntarily deserted or abandoned him at the time of the accident, such wife is conclusively presumed to be totally dependent upon her husband, and is eligible for death benefits under the act. Where, however, the wife waives her right to such benefits by failing to file a claim therefor within the period of limitations, and where a proper claim is filed within such period by the mother of the decedent, who was totally dependent upon him for support, the employer and insurance carrier cannot avoid their liability for the payment of death benefits by merely showing that there is a widow in life. Upon the death of the employee, the liability of the employer becomes fixed and he is bound to pay the death benefits under the act. If the beneficiary primarily entitled thereto waives compensation, beneficiaries secondarily entitled thereto may recover.
The evidence developed: that the deceased, Floyd Zachery, had sustained the injuries resulting in his death in the course of his employment by the defendant in error; that at the time of his death he had living a wife, who had separated from him in 1938 and had for several years past been self-supporting; that he had effected a bigamous marriage with another woman with whom he had been living in one side of his mother's house; and that the mother claimant occupied the other half of the house with another son; that his wife knew all these facts, had visited the house on several occasions, had been aware of her husband's death, and stated to the board that she had filed no claim in the case, because "I thought his mother was already done filed a claim and was already getting his money; getting money, you know, to take care of herself; I would rather she would get the money to take care of herself than for me to get it."
The evidence as to the total dependency of the mother upon her deceased son was in some conflict, but there was evidence from which the board might have determined that she was in fact totally dependent upon his earnings, and that he supported her. The judge of the superior court reversed the decision of the board upon the ground that the mother was not eligible for benefits under the Workmen's Compensation Law, due to the fact that the deceased had a wife living at the time of his death. The judgment complained of is as follows: "The foregoing case coming on for hearing, and after hearing arguments of counsel for the parties, it is considered, ordered and adjudged by the court that the award made by the director to the claimant, the mother of the deceased, be, and the same is hereby reversed. It appearing from the record that at the time of the injury and death of the employee that he had a living wife who, under Code § 114-414, `shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee,' and it not appearing from the record that she had voluntarily deserted or abandoned him at the time of the accident." At the time of the initial hearing before the Board of Workmen's Compensation, more than a year had elapsed since the death of the employee. No claim had been filed for death benefits other than that of the decedent's mother, and all other claims were then barred by the statute of limitations. It is apparent that, had the wife filed her claim within the statutory period, she would have been entitled to the death benefits allowable under the act; and had there been no wife, the mother would have been entitled to such benefits. The precise question is whether, in the absence of a claim by one primarily entitled to compensation under the law, the claim of a person secondarily entitled to benefits may be considered and adjudicated.
In New Amsterdam Casualty Co. v. Sumrell,
A widow who has not deserted or abandoned her husband is conclusively presumed totally dependent, and is therefore eligible for an award, so far as dependency is concerned. This right becomes fixed as of the time of the accident. SeeAtkinson v. Atkinson,
In 71 Corpus Juris, Title, Workmen's Compensation, § 302, it is stated: "A statute conditioning the right of the parent to compensation for death of a child on the child's leaving no widow, widower or child of his own is construed to mean no widow, widower or child entitled to compensation under the act, so that the parent's right is not barred by the child's leaving a widow, provided the widow is not entitled under the act." We must, therefore, hold that, while the fact of dependency is determined as of the time of the accident, the fact of eligibility must be determined as of the date of hearing. For instance, both a mother and a widow may be dependent on the date of the accident. *663 Both may file claims. In such circumstances, the widow at the time of the hearing is the one eligible for compensation. However, should the widow have died or remarried after she filed a claim and before such hearing, then and in that event the mother would be eligible for the compensation. The widow here at the time of the hearing, through her waiver of her rights, had become ineligible for compensation. The liability of the employer and carrier had become fixed at the time of the death of the employee to pay the compensation to the claimant who was next in line for benefits and who was otherwise eligible to receive the same, in this case the mother claimant.
The decisions relied on by counsel for the defendant in error under the homicide statutes are not applicable here, because the right to recover for wrongful death on a common-law action is in derogation of the common law, and it has been held that these statutes must be strictly construed. Smith v. Hatcher,
In a case of this kind, a situation might arise where an employee might be killed in an accident under circumstances authorizing compensation under this law; where he would leave a widow, conclusively presumed to be totally dependent upon him, who would be entitled to the compensation if she should claim it; where such deceased might also leave a mother totally dependent upon him; and where the mother might immediately after his death file a claim for compensation, at which time the widow would not be barred. Where such circumstances are made to appear, it would be the duty of the Workmen's Compensation Board to defer action on the claim of the mother until *664 after the widow became ineligible for compensation by being barred by the statute of limitations, or the board has conclusive evidence before it that she waived her right to workmen's compensation or otherwise becomes ineligible.
There being no claimant here other than the mother eligible to receive benefits under the provisions of Code § 114-414, and there being evidence from which the board was authorized to find that the mother was in fact totally dependent upon her deceased son, the judge of the superior court erred in reversing the award of the Board of Workmen's Compensation finding in favor of the mother claimant.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.