Wilmoth v. Phœnix Utility Co.
| Decision Date | 20 October 1934 |
| Citation | 75 S.W.2d 48 |
| Court | Tennessee Supreme Court |
| Parties | WILMOTH et al. v. PHŒNIX UTILITY CO. et al. |
Appeal from Chancery Court, Knox County; Robert M. Jones, Judge.
Proceeding by Mary Bales Wilmoth and others to recover compensation under the Workmen's Compensation Act for the death of an employee, opposed by the Phœnix Utility Company, employer, and another. From a Chancellor's decree, allowing compensation to named claimant and another and denying compensation to third claimant, the latter and opponents appeal.
Affirmed.
Carl T. Houston and Harry O. Bales, both of Knoxville, for appellants.
Thomas H. Goodman, of Knoxville, for appellees.
Parties on both sides of this compensation case appeal from the decree of the chancellor. The employing company concedes liability for compensation to the widow of 30 per cent. of the deceased employee's average weekly wages. Claims were made for a 10 per cent. allowance to an infant ward of the deceased, and for an additional 10 per cent. allowance to a mother-in-law, both alleged to be dependents. The chancellor allowed the first claim and denied the latter. A further controversy is presented as to the exact amount of the average wages of the deceased.
1. The child, four years old on the filing of the petition, had been taken from the custody of its parents in June, 1930, by the juvenile court of Knox county, which found the parents to be unfit to retain its custody, and placed in the care and custody of the deceased and his wife. It had been wholly supported by the deceased as a dependent member of his family until his death. We agree with the chancellor that this child was a dependent in the sense of the statute and his decree awarding 40 per cent. of the average weekly wages of the deceased to the widow and this child will be affirmed. The award is controlled by Code, § 6883, subdivisions (1) and (7). Relationship is not the test, but support and actual dependency of the child. See our cases of Portin v. Portin, 149 Tenn. 530, 261 S. W. 362, Kinnard v. Tenn. Chemical Co., 157 Tenn. 206, 7 S.W.(2d) 807, and Memphis Fertilizer Co. v. Small, 160 Tenn. 237, 238, 22 S.W.(2d) 1037. The obligation of the care and custody of this child was placed upon the deceased by court decree and it became his ward (see Code, § 10289) and dependent in a legal as well as a moral sense, despite the fact that it had living blood parents.
2. We agree with the chancellor also that the mother-in-law was not entitled to recover compensation as a dependent. While she spent a large portion of her time in the home of the deceased, she was the owner of income bearing property, the present value of which is apparently fully equal to the cash or present...
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