Draus v. International Silver Co.

• Decision Date: 16 December 1926
• Citation: Draus v. International Silver Co., 105 Conn. 415, 135 A. 437 (Conn. 1926)
• Court: Connecticut Supreme Court
• Parties: DRAUS v. INTERNATIONAL SILVER CO.

135 A. 437

105 Conn. 415

DRAUS v. INTERNATIONAL SILVER CO.

Supreme Court of Errors of Connecticut.

December 16, 1926

Appeal from Superior Court, New Haven County; Arthur F. Ells, Judge.

George E. Beers, of New Haven, and Denis T. O'Brien, Jr., of Meriden, for plaintiff-appellant.

Cornelius J. Danaher, of Meriden, for defendant-appellant.

HAINES, J.

It appears from the finding that John F. Draus, a minor son of the claimant, died July 26, 1925, from pulmonary tuberculosis; that he left surviving him, besides his mother brothers and sisters of the ages, respectively, of 22, 20 16, and 14 years, also his father, who had not been living with his family for 3 years, and had not in that time contributed anything to the family support; that the claimant was dependent entirely upon the contributions of her children, and had no other means of support; that the two older children paid her $10 each per week for board and room, and the two minor children, who were working, one of whom was the decedent, gave her all their wages--those of the decedent being $20 per week. The decedent received from his mother his board and room, valued at $10 per week, and spending money of $1.50 per week. It further appears that the decedent applied for compensation and a finding and award was made by the commissioner February 3, 1925, in which finding it was held that the tuberculosis which caused the death of the decedent was caused by the condition of his employment, and constituted an injury arising out of and in the course of his employment. These facts were incorporated in the present finding by reference to the previous finding and award and without further hearing thereon. It is also recited in the present finding that the respondent moved that the finding of February 3, 1925, be modified and corrected on the ground that the tuberculosis was communicable and so within the exception of the Compensation Act, and also that the finding and award of February 3, 1925, should not be considered in this case, but that the question of the origin and cause of the tuberculosis should be heard de novo. The commissioner overruled both these claims. The award to the claimant was $8.50, and both respondent and claimant then appealed to the superior court, where the award was confirmed and both then appealed to this court.

The respondent assigns three reasons of appeal, namely: That the superior court erred (a) " upon the facts found in sustaining the award of the commissioner for compensation to Catherine Draus" ; (b) " in overruling the claim of the respondent that the claimant was not entitled to compensation upon the facts found" ; and (c) " in sustaining the finding and award of the commissioner in awarding the claimant, Catherine Draus, compensation, in view of the fact that said John F Draus, deceased, was a minor whose father was living at the time of his death." The first two assignments do not inform us of the specific error which the respondent claims to have been committed by the superior court. These assignments are too general and do not require consideration in this court.

" It has been repeatedly held by the courts of this state that claims of law are limited to those made upon the trial of the case in the court below and to those specifically made in the assignments of error." General Statutes, § § 5833, 5837; Fidelity & Casualty Co. v. Palmer, 91 Conn. 410, 418, 99 A. 1052.

" The first [reason of appeal] is that the court erred in rendering judgment for the plaintiff. He does not ‘ state the special errors complained of distinctly,’ nor ‘ the decision of the court upon any question or questions of law arising in the trial’ by which he thinks himself aggrieved. * * * Such an assignment does not meet the requirements of the statute; it is too general, and will be disregarded. Harper Machinery Co. v. Ryan-Unmack Co., 85 Conn. 359, 363, 82 A. 1027. ‘ This is a sort of blanket objection, which this court will not consider.’ Fagerholm v. Nielson, 93 Conn. 380, 387, 102 A. 333." Hine v. McNerney, 97 Conn. 308, 309, 310, 116 A. 610; McKeon v. Byington, 70 Conn. 429, 422, 423, 39 A. 853; New York, N.H. & R. R. Co. v. Hungerford, 75 Conn. 76, 82, 52 A. 487; Hayden v. Fair Haven & Westville Ry. Co., 76 Conn. 355, 365, 56 A. 613.

The finding shows that the commissioner, over the respondent's objection, incorporated the February 3d finding in the present finding by reference without further hearing. This ruling of the commissioner was not specifically appealed from by the respondent, but is by the superior court in its memorandum of decision of August 3, 1926, bound to be correct. We need go no further with this phase of the case, than to say that the conclusions of the superior court in this regard were correct. Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 131 A. 739.

The respondent's third reason of appeal fairly raises the question whether the claimant could, under the facts found, be held to be a partial dependent of her decedent minor son. It appears that the father had been separated from the family for more than three years, and had contributed nothing to its support, and this was the situation when the decedent died. The obligations of a minor to his parents are obedience and subjection, and his earnings, if any, while those of the parents are protection, education, and support. This was true at common law, so far as the father was concerned, and these obligations are strictly reciprocal. By our statute, the obligations of the mother and the rights of guardianship are now the same as the father's, and the " powers, rights, and duties" of father and mother are equal. General Statutes, § § 4861, 1650.

" If the right to receive the earnings of minor children, which is conceded to the father, be made to rest on the liability of the father for their support, the mother, having the same liability, should be entitled to the same right. * * * It is difficult to imagine any grounds on which the right of the father to the earnings of minor children can be placed, which do not apply with equal or greater force in support of the right of the mother." Matthewson v. Perry, 37 Conn. 435, 9 Am.Rep. 339.

As between the minor son and his father, in the present case the abandonment had the effect of emancipating the son, and the father lost his right to the wages of the boy. It has been held that emancipation results where the father allows the minor to make his own contracts, to receive his wages, to shift for himself, or where the father neglects and refuses to support and educate the minor, as where the father voluntarily releases the parental control to a third person--all being elements existing in the instant case. 29 Cyc. p. 1576 et seq., and cases cited. While the father's abandonment brings a change of status as between him and the minor child, it obviously cannot affect the existing status of the mother and the child. The mother for three years had been the head of the family. Upon her rested the obligation to support the...