Glens Falls Indem. Co. v. Jordan

• Decision Date: 25 September 1937
• Docket Number: 26351.
• Citation: 193 S.E. 96,56 Ga.App. 449
• Parties: GLENS FALLS INDEMNITY CO. et al. v. JORDAN et ux.
• Court: Georgia Court of Appeals

193 S.E. 96

56 Ga.App. 449

GLENS FALLS INDEMNITY CO. et al. v. JORDAN et ux.

No. 26351.

Court of Appeals of Georgia, First Division

September 25, 1937

Syllabus by the Court.

1. The evidence authorized the finding that both the father and the mother of the deceased employee were partially dependent upon him for support at the time of the accident.

2. An award in this case to the father, for the joint use and benefit of himself and wife, was not illegal for any reason assigned.

Error from Superior Court, Columbia County; A. L. Franklin, Judge.

Proceeding under the Workmen's Compensation Act by Shelley Jordan Sr., and wife for the death of their son, Shelley Jordan Jr., against the C. M. Lyle Construction Company, employer and the Glens Falls Indemnity Company, insurer. To review a judgment of the superior court affirming an award of the director to the claimants as partial dependents of deceased employee, the insurer and employer bring error.

Affirmed.

Bussey & Fulcher, of Augusta, for plaintiffs in error.

J. D Gardner, of Camilla, and Hull, Barrett, Willingham & Towill, of Augusta, for defendants in error.

GUERRY Judge.

On January 27, 1936, Shelley Jordan Jr., while in the employment of the Lyle Construction Company, sustained injuries which arose out of and in the course of his employment, from which he died, Mr. and Mrs. Shelley Jordan Sr., made claim with the Department of Industrial Relations for compensation as "dependents" of the deceased, under the terms of the Workmen's Compensation Act. The director before whom the hearing was had found as a fact that both claimants were partially dependent upon the deceased for support. The director's award was as follows: "C. M. Lyle Construction Company, employer, and Glens Falls Indemnity Company, insurer, are directed to pay to Shelley J. Jordan Sr., for the use and benefit of himself and wife, Mrs. Shelley J. Jordan Sr., the sum of $2.55 per week, beginning as of February 24, 1936, to continue during dependency, not to exceed 300 weeks." Exceptions are taken to this award.

It appears from the evidence most favorable to the claimants that the deceased began working for the Lyle Construction Company about December 19, 1935. Before that time and for two years before December 5, 1935, the deceased was employed by the Bryan Construction Company. In the interim, from about December 5, 1935, to December 19, he was not employed.

Shelley Jordan, Sr., testified that during the time the deceased was employed by the Bryan Construction Company he made regular substantial weekly contributions for the support of himself and Mrs. Jordan, and that these contributions were used to that end. He estimated that the average weekly contribution during that time was $6 per week. During the several weeks that the deceased was employed by the Lyle Construction Company before his injury, he did not make any contributions, but at the time of the accident he had saved up $40 or $50 from his wages for the witness. When he visited the deceased in the hospital after his injury the deceased had given the doctor the amount saved up for him, but had $40, and told him to take that, which he did. During the time he was unemployed he was at home, and bought some groceries from the commissary. The witness was employed by the Attapulgus Clay Company as a tractor man; for a year or more immediately before the injury to the deceased he was employed merely by the hour; his average weekly wage was around $10; he had no other source of income, and his wife was not employed in any gainful occupation. Mrs. Shelley Jordan, Sr., testified that the deceased did not make contributions to her directly; that he made them to his father, and in thus helping his father "that helped her"; and that she could not say that Mr. Jordan could have supported her without the help of her son. Mr. I. Bryan, owner and operator of the Bryan Construction Company, testified that the deceased, during the time he worked for Bryan, gave some of his wages to his father and mother. Bryan had seen deceased give his father money; and deceased often told him that he had given part of his wages to his father and mother. Bryan did not know the amount or amounts that deceased contributed.

The insurer introduced in evidence certain written statements of Mr. and Mrs. Jordan, made on March 6, 1936. The statement of Mr. Jordan is substantially as follows: "My name is Shelley James Jordan Sr. * * * I am the father of Shelley James Jordan Jr., now deceased, and I work for Attapulgus Clay Co. Shelley Jr. was my only child. He was born on August 12, 1914. Shelley Jr. was not married and had not been married. Shelley Jr. began working for Lyle Construction Company on or about December 19, 1935 and worked for them continually until he was hurt. Since Shelley Jr. began working for Lyle Construction Company he has not sent me any money except $40 after he was hurt. From about the middle of October, 1935, Shelley was at home and working for no one until about Dec. 19, 1935, when he went with Lyle Construction Company. Prior to the middle of October, 1935 Shelley Jr. was with Bryan Construction Company. While he worked for Bryan on the Gray, Ga. job he (Shelley Jr.) sent me $25 with which to pay my taxes. When I went to Augusta after Shelley Jr. was hurt, he gave me $40 then." On cross-examination Jordan admitted the truth of this statement, except that he was mistaken as to the date the deceased quit work for the Bryan Construction Company. The written statement of Mrs. Jordan was substantially as follows: "My name is Mrs. Shelley James Jordan Sr. * * * My husband * * * is living, and works for the Attapulgus Clay Co. I am the mother of Shelley James Jordan Jr., now deceased. He was our only child. He was born on August 12, 1914. Shelley Jr. had worked for Bryan Construction Company for about two years. This was not regular work, as he was in school, and he worked only during vacations until he finished school. Shelley Jr. finished at the Attapulgus high school in June, 1934. From this time on he worked regular as long as Bryan Construction Company had work for him to do. When he was not actually at work he was at home. Bryan Construction Company was the only concern he worked for, other than Lyle Construction Company. Some time about the middle of October, 1935 worked last for Bryan Construction Company. This was on a job at Gray, Ga. After this Shelley Jr. was at home and not working for any one for about a month and a half till he accepted a position with Lyle Construction Company on a job near Augusta, Ga. He first went to work for Lyle Construction Co. about the middle of December, 1935. During the time Shelley Jr., was with the Lyle Construction Co. he did not send any money home. After he was hurt Mr. Jordan Sr. and I went to Augusta to be with him. Shelley Jr. was in the hospital when we got there. At this time Shelley Jr. gave his father $40. While with the Bryan Construction Co. Shelley Jr., sent some money home to his father. What money he sent was to his father for both of us. Occasionally, while with Bryan Construction Company Shelley Jr. would give me some money but this was not at any regular times." On cross-examination Mrs. Jordan admitted the truth of this statement.

Counsel for the insurer contends that there is not sufficient evidence to support the finding of the director that the claimants were "dependents" of deceased.

Our Workmen's Compensation Act provides that certain of the next of kin of a deceased employee shall be conclusively presumed to be dependent upon the deceased. Neither of the claimants in the present case fall within that class. The act provides (Code, § 114-414), that "In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the facts at the time of the accident, * * * and no compensation shall be allowed, unless the dependency existed for a period of three months or more prior to the accident." In Maryland Casualty Co. v. Campbell, 34 Ga.App. 311, 129 S.E. 447, 448, Maryland Casualty Company v. Bartlett, 37 Ga.App. 777, 142 S.E. 189; Moll v. City Bakery, 199 Mich. 670, 165 N.W. 649; Engberg v. Victoria Copper Mining Co., 201 Mich. 570, 167 N.W. 840; Globe Grain & Milling Co., v. Industrial Comm., 57 Utah 192, 193 P. 642; and compare 71 C.J. 529, § 272], not only to the injured workman, but to his dependents in case of death. While ordinarily no exact standard for the determination of dependency is prescribed by statute, and it is difficult, if not impossible, to formulate such a standard, it may be said in general terms that a 'dependent' is one who looks to another for support, one dependent on another for the ordinary necessities of life, for a person of his class and position, and that, to be entitled to compensation as a dependent, one need not deprive himself of the ordinary necessities of life to which he has been accustomed. * * * It follows that dependency does not depend on whether the alleged dependents could support themselves without decedent's earnings, or so reduce their expenses that they would be supported independent of his earnings, but on whether they were in fact supported in whole or in part by such earnings, under circumstances indicating an intent on the part of the deceased to furnish such support." In 2 Schneider on Workmen's Compensation Laws 1194, § 367, it is said: "No exact standard for the determination of dependency is prescribed by statute, and it is difficult, if not impossible, to frame a definition which will include the varying conditions under which dependency may exist. * * * Dependency being a question of fact, at least until the facts are found, and the facts as varied as the number of cases, each case must be decided on...