Havey v. Erie R. Co.

• Decision Date: 28 June 1915
• Citation: 95 A. 124
• Parties: HAVEY v. ERIE R. CO.
• Court: New Jersey Supreme Court

95 A. 124

HAVEY

v. ERIE R. CO.

Supreme Court of New Jersey.

June 28, 1915.

Certiorari to Court of Common Pleas, Hudson County.

Proceedings by William E. Havey, administrator of Garret Havey, deceased, against the Erie Railroad Company, for compensation under the Workmen's Compensation Act for the death of his intestate. Compensation at the rate of GO per cent. of the weekly wage was awarded for 300 weeks, and the Railroad Company brings certiorari. Reversed and remanded, with directions.

Argued November term, 1914, before SWAYZE, PARKER, and KALISCH, JJ.

Collins & Corbin and George S. Hobart, all of Jersey City (Robert J. Bain, of Jersey City, of counsel), for prosecutor. George E. Cutley, of Jersey City, for defendant.

KALISCH, J. Garret Havey, the petitioner's decedent, was a brakeman in the employ of the prosecutor. It is not denied by the prosecutor that the plaintiff's decedent met his death by an accident arising out of and in the course of his employment.

The trial judge found the following facts:

(1) That at the time the plaintiff's decedent went into the employ of the prosecutor he represented himself to the prosecutor to be John Joseph Havey, aged 21 years, when, in fact, he was Garret Havey, aged 18 years.

(2) That at the time of the decedent's death he was living at his father's home, and that he left him surviving a father and mother, and four brothers and four sisters under the age of 14 years.

(3) That the average weekly earnings of the deceased were $10.60, which were turned over by him to his father, who applied the same to the support of the household, and that the father and mother and brothers and sisters were actual dependents.

The trial judge held that the misrepresentation by Garret Havey as to his name and age did not relieve the prosecutor from making compensation under the statute, and awarded, as compensation, 60 per cent. of the weekly earnings, and accordingly gave judgment against the prosecutor for $6.48 per week for 300 weeks.

One of the reasons assigned for reversal of that judgment by counsel for prosecutor is that the contract of employment entered into between the prosecutor and the plaintiff's intestate was made by misrepresentation and fraud, in that the plaintiff's decedent misrepresented his name and age to the prosecutor at the time he applied for employment and obtained it. We think that the misrepresentation as to name and age, in the absence of any proof that the prosecutor was induced to enter into the contract upon such misrepresentation, did not constitute such a fraud that it will operate to relieve the prosecutor from the statutory obligation to make compensation in a case arising under the statute. Moreover, it does not appear that there was any causal connection between the misrepresentation and the contract.

The chief argument addressed to us by counsel of prosecutor is, in substance, that the father and mother and the minor brothers and sisters were not dependents within the meaning of the term of "actual dependents" of paragraph 12 of section 2 of the act of 1911, and that, even though they be such, the allowance of 60 per cent. of the weekly earnings is in excess of the amount authorized by the act; that under the act no more than 25 per cent. of the weekly earnings of the deceased could be properly adjudged. Whether or not the father and mother and minor brothers and sisters, living together in the same household, and subsisting in part on the earnings contributed by the deceased to his father, the head of the household, and applied by the father to the support of himself and his family, were actual dependents upon the deceased, was a question of fact for the trial Judge to determine. There was testimony in the case that tended to establish that the plaintiff's intestate gave his wages to his father, and that such wages were devoted to the support of the family. That fact was sufficient to afford a legal basis for the finding of the trial judge that they were actual dependents.

It has been held by this court that it is not essential to the right of a dependent who seeks to recover compensation under the act that such dependent should be actually or entirely dependent upon the earnings of the deceased for the necessities of...