Atkins v. Employers Mut. Ins. Co.

• Decision Date: 26 May 1961
• Citation: 208 Tenn. 539,347 S.W.2d 49,12 McCanless 539
• Court: Tennessee Supreme Court
• Parties: Roger Lee ATKINS B/N/F, Plaintiff in Error, v. EMPLOYERS MUTUAL INS. CO. et al., Defendants in Error. 12 McCanless 539, 208 Tenn. 539, 347 S.W.2d 49

Page 49

347 S.W.2d 49

Roger Lee ATKINS B/N/F, Plaintiff in Error, v. EMPLOYERS MUTUAL INS. CO. et al., Defendants in Error.

12 McCanless 539, 208 Tenn. 539, 347 S.W.2d 49

Supreme Court of Tennessee.

May 26, 1961.

Earl S. Ailor, Knoxville, for plaintiff in error.

W. E. Fitzgerald, Knoxville, for defendants in error.

SWEPSTON, Justice.

This is a contest between adverse claimants to the death benefits under the Workmen's Compensation Act arising out of the death of Roy Lee Atkins on August 21, 1959. The insurance carrier is merely a stakeholder, ready to pay the money as the Court may adjudge.

The contest is between the lawful son, age 6, of the deceased workman, who claims the entire benefits, and the two children, ages 10 and 12 respectively, of a married woman who for a short time prior to the death of decedent, lived with him as his common law wife in the State of Florida and during which time her children were at least partially supported by decedent as members of the family unit. The trial judge held that these two children not related to decedent were actual dependents of his and that they, along with the legal son of the decedent, should share equally in the award.

The two assignments of error in behalf of the lawful son are (1) that the trial judge erred in not finding that the two children not related to decedent were conclusively presumed to be dependents of their father, David Smith, and (2) the court erred in not finding that the lawful son of the deceased was the only lawful dependent at the time of his death and entitled to exclusive benefits.

The material facts are as follows: Thelma Jean Barrs was first married to David Smith and her two children are of that marriage. She was divorced from Smith in 1952. In 1953 she was married to Barrs and is still legally married to him. The decedent, Roy Lee Atkins, was divorced from his wife in June of 1958, after which he and Mrs. Barrs commenced living together in a common law relationship as man and wife in Miami, Florida, and her two children lived with them; they made purchases of property together as though they were man and wife and there is evidence that he reported these children as his dependents in his tax report for 1958. She claims that she and the two children were totally dependent upon the deceased from the latter part of June, 1959.

With reference to the second assignment of error, Mrs. Barrs first made a claim for herself and her two children and later abandoned the claim in behalf of herself. At one stage of the development of the claim after the death of the employee, she signed an affidavit stating that neither she nor the two children were dependents of the decedent; she also made the statement that they were not entitled to any of the proceeds. However, she repudiated this part of the affidavit in her testimony and, of course, her statement that none of them were entitled to the benefits was a conclusion of law which is not binding on her or anybody else. Although she did make this affidavit, there was material evidence to support the claim of dependency of the children and of herself for that matter, and the circuit judge having so found them to be actual dependents, concludes the matter so far as ...