Estrin v. Workmen's Circle Colony, Inc., 57

• Decision Date: 24 January 1930
• Docket Number: No. 57,October Term, 1929.,57
• Citation: 249 Mich. 186,228 N.W. 701
• Parties: ESTRIN v. WORKMEN'S CIRCLE COLONY, Inc., et al.
• Court: Michigan Supreme Court

249 Mich. 186

228 N.W. 701

ESTRIN

v.WORKMEN'S CIRCLE COLONY, Inc., et al.

No. 57, October Term, 1929.

Supreme Court of Michigan.

Jan. 24, 1930.

Certiorari to the Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Rose Estrin against the Workmen's Circle Colony, Inc., and another, to recover compensation for the death of Harry Estrin, deceased. On certiorari to review an order of the Department of Labor and Industry, denying plaintiff compensation as a partial dependent. Reversed and remanded, with directions.

Argued before the Entire Bench.

Wm. C. Brown, of Lansing, for appellant.

G. F. Classon, of Detroit, and Dunham & Cholette, of Grand Rapids, for appellees.

McDONALD, J.

The plaintiff reviews by certiorari an order of the Department of Labor and Industry, in which she was denied compensation on a claim that she was a dependent of her deceased son, Harry Estrin, who was drowned on August 1, 1928, while employed by the Workmen's Circle Colony, Inc. The Colony was conducting a summer camp for children at South Haven, Mich. Harry Estrin was employed as physical instructor. In addition to other work, he had charge of the swimming activities. At the time of his death, he was with a group of children in the lake. A little girl got beyond the sand bar. He went to her rescue. On account of a strong undertow, both were drowned. His mother, claiming to be a dependent, filed an application for compensation. The deputy commissioner, who heard the claim, found that she was partially dependent, and allowed her $7.18 a week for a period of 300 weeks. The defendants appealed, claiming that the evidence did not show dependency. The plaintiff also appealed, claiming that compensation should have been allowed for total dependency. On the hearing before the board, compensation was denied, on the theory that the plaintiff was not wholly or partially dependent.

It is conceded that the accidental drowning of Harry Estrin arose out of and in the course of his employment. The only question involved is the plaintiff's dependency. The opinion of the commissioners is not as definite in many particulars as it should be. As we understand it, they accepted the plaintiff's testimony of the material facts of her claim, but denied compensation on the ground that, because others shared in her contributions from the deceased, it was not possible to determine the degree of her dependency. We quote from the opinion:

‘Is the fact that five other people shared in the contributions made by the deceased fatal to plaintiff's claim? In other words, does her testimony fall by its own weight? The commission are of the opinion that it does. The commission must find that, if plaintiff's testimony is true, she was not the only one dependent on the decedent for support and maintenance; that, besides the father being dependent, there was the dependency of the son Nathan. How can the amount of contributions for plaintiff be determined, in view of plaintiff's testimony?’

Though other members of the family benefited by contributions to the mother, it does not follow that they were partially dependent on the deceased, within the meaning of the statute. But that question we need not discuss, because it does not interfere with a determination of the amount of contribution to the mother. We...