Blanton v. Wheeler & Howes Co.

• Decision Date: 19 December 1916
• Citation: 91 Conn. 226,99 A. 494
• Court: Connecticut Supreme Court
• Parties: BLANTON v. WHEELER & HOWES CO. et al.

99 A. 494

91 Conn. 226

BLANTON

v. WHEELER & HOWES CO. et al.

Supreme Court of Errors of Connecticut.

Dec. 19, 1916.

Appeal from Superior Court, Fairfield County; William S. Case and Edwin B. Gager, Judges.

Proceedings under the Workmen's Compensation Act by Bertha L. Blanton, claimant, opposed by the Wheeler & Howes Company, employer, and the Travelers' Insurance Company, insurer. From an award of the acting Compensation Commissioner of the Fourth District, awarding claimant nothing and dismissing her claim, she appealed to the superior court, where a motion to recommit with direction to render an award for claimant or for the State Treasurer was denied by Case, J., and thereafter a judgment entered by Gager, J., dismissing the appeal, from which judgment the claimant appealed. No error.

James P. Pigott, of New Haven, for appellant. William Brosmith and Robert C. Dickenson, both of Hartford, for appellees.

WHEELER, J. The appeal from the compensation commissioner was heard in the superior court at short calendar on an oral motion that the finding and award be recommitted with direction either that compensation be awarded the claimant or the State Treasurer.

The motion should have been in writing. Upon appeals of this nature it is preferable that reasons of appeal and an answer thereto be filed forthwith, and, if testimony is to be introduced upon the hearing, that the hearing be had speedily; if it appears that neither side will produce evidence, a written motion for judgment for the short calendar should be filed and heard.

The questions upon this appeal are twofold:

Did the superior court err in dismissing this appeal and in confirming the commissioner in holding that the claimant was not a dependent?

Did the superior court having confirmed the commissioner in his holding err in not awarding $750 to the State Treasurer?

The claimant concedes that the question of dependency under the Compensation Act (Pub. Acts 1913, c. 138) is one of fact. Her claim is that under the statutory definition of a dependent and the decision in Powers v. Hotel Bond Co., 89 Conn. 143, 93 Atl. 245, the conclusion of the commissioner that the claimant was not a dependent of her father is contrary to the subordinate facts of the finding, and that these facts require the conclusion that she was a partial dependent. The claimant was the only daughter of a Mr. Garner of New Haven, and his employer was one of the respondents, and both were within the Compensation Act. Mr. Garner suffered an injury arising out of and in the course of his employment with the respondent from which he died on July 7, 1914. Mr. Garner left a small amount of property. His weekly wage had been $11.88. The claimant for a long time preceding her father's decease had enjoyed good health. She lived with her husband in Scranton, Pa., and he earned $40 a month. She herself earned about $10 a month, and she and her husband made a small profit from taking lodgers. Mr. Garner, at the time of his wife's death 35 years before, had promised her that he would look out for their daughter, the claimant. He told the claimant from time to time he would take care of her and if she needed a home she could come to him. For a number of years he had sent her every month or two sums varying from $2 to $5. In the holiday season of 1913 he sent her $5 but sent her no money thereafter, writing her that if she would come to New Haven in May he would give her money. The claimant and her husband have no property and no one dependent upon them, and live in a small house paying $13 a month rent. The claimant used the moneys received by her from her father upon her ordinary living expenses.

The finding quotes part of the testimony of the claimant, in which she says she relied upon the support sent her by her father and used it to help meet her different expenses, and the court finds this testimony to be true. Accepting in this branch of his argument the test of dependency to be as announced in Powers v. Hotel Bond Co., 89 Conn., 143, 93 Atl. 245, "whether the contributions were relied upon by the dependent for his or her means of living, judging this by the class and position in life of the dependent," counsel for the claimant insists that the subordinate facts require "a conclusion that claimant was a partial dependent of her father." Whether the claimant relied upon the contributions of Her deceased father did not appear in the finding as originally made. All that appeared was that the moneys received were used by the claimant upon her ordinary living expenses.

Upon motion of claimant an amendment of the finding was made that:

"Included in the testimony of the claimant were the following answers to questions as indicated, which testimony is found to be true."

Then follows in some detail an excerpt from the testimony, a part of which was:

"Q. You were asked if you relied upon the support which your father is supposed to have sent you, and you promptly answered, 'Yes'? A. Yes. Q. Do you know the meaning of the word 'rely'? Will you please tell us? You have been asked if you relied upon the money which your father sent you, and you answered, 'Yes.' Now I want to know what the meaning of the word 'rely' is. A. Yes; depend on. I always looked forward to what I got from him for certain expenses. Q. What expenses? A. I didn't always use it for just the same thing, but, of course, we had expenses, and I always knew when we got that it would help out."

This excerpt has no place in the finding; that should contain the facts found by the court, not the evidence from which the facts are to be found.

Finding that certain testimony is true is not the same thing as finding that some fact as testified to is true. Were we to consider these answers as the equivalent of each fact capable of being found from them, we should not inevitably be constrained to hold that the contributions were relied upon...