Croom v. Cochran

• Court: Texas Civil Court of Appeals
• Writing for the Court: CHADICK
• Citation: Croom v. Cochran, 379 S.W.2d 957 (Tex. Ct. App. 1964)
• Decision Date: 19 May 1964
• Docket Number: No. 7575,7575
• Parties: Dorothy Giberson CROOM, Guardian, Appellant, v. Pauline COCHRAN, Appellee.

Page 957

379 S.W.2d 957

Dorothy Giberson CROOM, Guardian, Appellant, v. Pauline COCHRAN, Appellee.

No. 7575.

Court of Civil Appeals of Texas, Texarkana.

May 19, 1964.

Rehearing Denied June 16, 1964.

Jack F. Cook, Jr., Austin, for appellant.

Barber & Seale, Jasper, for appellee.

CHADICK, Chief Justice,

This is a Workmen's Compensation Law suit. The trial court judgment awarded benefits accruing by reason of the death of a workman and adjudicated the contest between rival claimants of the benefits. The judgment of the trial court is affirmed.

The parties in this court are the appellant, Dorothy Giberson Croom, Guardian of the estate of Wilbert Leo Ellis, a surviving child of the deceased workman, Louis Magee Ellis, and the appellee, Mrs. Pauline Cochran, a widow, likewise a surviving child of Louis Magee Ellis. A single question of law is presented by the appeal; issue is joined by the parties upon the question as it is stated in the appellant's brief, to-wit:

'Was Wilbert Leo Ellis, mentally incompetent and a student at the Travis State School for the mentally retarded, a dependent child of Louis Magee Ellis under the Workmen's Compensation laws at the time of the latter's death?'

In January, 1961, shortly after his mother's death, Wilbert Leo Ellis, then twenty-three or four years of age, was placed by his father in the Austin State School for the mentally retarded. Before this he was a constituent of his father's family and the recipient of his father's care and support. At the time of his father's death in October, 1961, this child had 'an I. Q. of about 14', and a 'mental age of about four years'. His mental retardation dated from birth, he was born a 'mongoloid', and was 'unable to carry on a conversation with anyone outside his family, * * * about all he was able to do was feed and dress himself'. His affliction prevented him from working or earning a livelihood, and he had no property, income or independent means of support.

When the adult child was placed in the school, a State operated institution, the father executed a contract obligating himself to pay the school $45.00 per month for his child's support, maintenance and treatment. When the father's death occurred October 22, 1961, the agreed monthly payments had not been made by the father, nor had the father or any other member of the Ellis family furnished money, food or clothing for the child or in anywise discharged the obligation of the contract, though it had not been altered or terminated. In the twelve month period preceding death the father earned approximately $4,000.00.

A sister of the retarded child, Mrs. Dorothy Ellis Dunn, applied for and received Social Security payments for the child's benefit. At trial time the Social Security Administration had allotted a sufficient amount to pay, and Mrs. Dunn had paid the school, $45.00 for each elapsed month subsequent to the death of the father.

The law, Art. 8306, Sec. 8a, Vernon's Ann.Tex.Civ.St., affords minor children of deceased workmen participation in compensation benefits accruing as the result of the workmen's death. The same statute provides that children not minors are also entitled to compensation if they are in fact dependent upon the deceased workman. The child, Wilbert Leo Ellis, is not a minor, but was 23 or 24 years of age at the time of his father's death. In this case, if as a matter of law, this adult child is a dependent in the sense that term is used in Art. 8306, Sec. 8a of the...