Fitzpatrick v. Hudson Coal Co.

• Decision Date: 12 April 1946
• Docket Number: 3944
• Citation: 46 A.2d 589,159 Pa.Super. 53
• Parties: Fitzpatrick v. Hudson Coal Company, Appellant
• Court: Pennsylvania Superior Court

46 A.2d 589

159 Pa.Super. 53

Fitzpatrick v. Hudson Coal Company, Appellant

No. 3944

Superior Court of Pennsylvania

April 12, 1946

Argued March 4, 1946.

Appeal, No. 23, Feb. T., 1946, from judgment of C. P Lackawanna Co., Sept. T., 1945, No. 1917, in case of Mrs Rose Fitzpatrick v. Hudson Coal Company.

Appeal by defendant from award by Workmen's Compensation Board.

Judgment entered for claimant, opinion by Leach, P. J. Defendant appealed.

Francis D. Mahon, with him R. S. Houck, for appellant.

William A. Bissell, with him Stark, Bissell &amp Reifsnyder, for appellee.

Baldrige P. J., Rhodes, Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

HIRT, J.

It is conceded that Cornelius Fitzpatrick was killed in an accident on August 10, 1943 within the course of his employment with defendant, and that claimant, in her right as widow, is entitled to compensation. She also claimed compensation on behalf of two grandchildren on the ground of their dependency on decedent. As to them, the referee found: "That the decedent supported and stood 'in loco parentis' to his two grandchildren Betty Anne Collins, born October 31, 1939 and James Francis Collins, born August 15, 1942. We find as a fact that the said grandchildren were members of the household of the decedent at the time of his death and dependent upon him for support." The finding is supported by sufficient competent evidence and we may not disturb it. The referee also concluded as a matter of law that decedent stood 'in loco parentis' to the children. The board adopted the referee's findings and conclusions, and both the board and the court affirmed the award, which included compensation for the children. The single question is whether, on the testimony upon which the above finding rests, (viewed in the light most favorable to the children, Brown v. Union Collieries Co., 153 Pa.Super. 293, 33 A.2d 786) we may say that the conclusion is unsupported in law. If decedent stood in loco parentis to these grandchildren and they were dependent upon him in the sense of the statute, they are entitled to compensation, since it is conceded that they were members of his household at the time of his death. § 307 of the Workmen's Compensation Act as amended, June 21, 1939, P. L. 520, 77 PS 562.

In July 1942, after her husband had deserted his family, Anna F. Collins, a daughter of decedent came to his house with her daughter Betty, then less than three years old. One month later her son James was born in decedent's home. The two children and their mother continued to live with decedent as members of his family until his death. Throughout the period, decedent accepted responsibility for the support of the children and maintained them in his home at his expense and paid the cost of their medical and hospital care. The mother of the children was employed only occasionally and her earnings were small. She and her sisters supplied some clothing for the children. But these small contributions to the maintenance of the children do not defeat the claim of dependency. All other support and maintenance of the children was supplied by decedent. While dependency must be actual it is not necessary that it be exclusive; it must be real but need not be total. Mayfield v. Kerr, 102 Pa.Super. 532, 157 A. 506; Howard v. McClane, 146 Pa.Super. 212, 22 A.2d 225.

But even so, appellant contends that decedent, in law, did not stand in loco parentis to the children because their father, who had deserted them, is legally liable and financially able to pay for their support. "The accepted definition of one 'in loco parentis' is 'one who means to put himself in the situation of a lawful father to the child, with reference to the office and duty of making provision for the child': Robinson's Est., 35 Pa.Super. 192, 195; 31 C.J. 358, note 77 [a]": Renovich v. Bethlehem Mines Corp., 131 Pa.Super. 351, 200 A. 122. The question, in construing the compensation act, is largely, although not wholly, one of the intention of one who has assumed the obligation of a parent to support and maintain children, not his own. Our compensation cases recognize that elements, other than mere voluntary assumption of support are to be considered in determining whether one stands in loco parentis to dependent children, although members of his household. In Dime T. & S.D. Co. v. Phila. & R. C. & I. Co., 78Pa. Superior Ct. 124, the child was illegitimate and the whereabouts of the mother unknown. ...