In re Peters

• Decision Date: 28 June 1917
• Docket Number: No. 9950.,9950.
• Citation: 116 N.E. 848,65 Ind.App. 174
• Parties: In re PETERS.
• Court: Indiana Appellate Court

65 Ind.App. 174

116 N.E. 848

In re PETERS.

No. 9950.

Appellate Court of Indiana, Division No. 1.

June 28, 1917.

Certified Questions from Industrial Board.

Proceeding for compensation under the Workmen's Compensation Act by one Peters. On certification of questions of law by the Industrial Board. Questions answered.

BATMAN, J.

Under the provisions of section 61 of the Workmen's Compensation Act (Acts 1915, p. 392), the Industrial Board has certified to this court certain questions of law, based upon the facts presented by a proceeding pending before that body, seeking the opinion of this court for guidance in determining such proceeding. The statement of facts as submitted by the Board is as follows:

“A., a boy of 17 years of age, was in the employment of B. on and prior to the 16th day of February, 1916, at an average weekly wage of $12.75; that on said date he received a personal injury by an accident arising out of and in the course of his employment, resulting in his instant death; that the employer had actual personal knowledge of the injury and death at the time of the occurrence; that the employé left surviving him a father, 41 years of age, a mother, 40 years of age, a brother, 15 years of age, and a brother, 8 years of age; that the deceased, the father, the mother, and the two brothers were living together as a family at the time of his injury and death; that the father was working and receiving a weekly wage of $15; that the father owned no property and had no income with which to support the family, except his own wages and the wages of the deceased; that the deceased had been working for 2 years prior to his death, and during all of said time had turned his wages over to his father weekly; that the wages of the deceased and the wages of the father went into a family fund, which was used for and was required for the support of the family; that out of said family fund the father supported the whole family, providing a home, clothes, and food for the deceased at a probable weekly cost of $4.”

The father makes claim for compensation, and claims that he is entitled to full compensation, or 55 per cent. of $12.75 for 300 weeks. First, the employer denies absolutely the dependency of the father; and, second, that, if he is dependent, he is not entitled to full compensation. Upon the foregoing facts the Board submits the following questions:

1. Is the father of the deceased a dependent of the deceased son, within the meaning of the Indiana Workmen's Compensation Act?

2. If the father be a dependent, is he entitled to full compensation, viz. 55 per cent. of $12.75 for 300 weeks?

[1] The questions presented for our determination in this case involve the dependency of a father on the earnings of a minor son for the support of himself and his family, consisting of his wife and two minor children. The Workmen's Compensation Act, now in force in this state, makes certain provisions for dependents, but does not undertake to define dependency. Section 38 of such act specifies who shall be conclusively presumed to be wholly dependent for support upon a deceased employé, and then provides that:

“In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury.”

It will be found that the father of a minor son is not included in any of the classes in which dependency is conclusively presumed by the terms of the act. The fact of his dependency on the earnings of such son, and the degree thereof, must therefore be determined in accordance with the existing fact at the time of the injury. The meaning of the word “dependent,” when used in Compensation and Liability Acts, has been frequently considered by various courts. The definitions given and applications made have not always been uniform, and hence authorities may be found to support various ascribed meanings. However, it has been uniformly held that want or distress need not exist before it can be said that the condition of dependency arises, and that a parent or his family need not reduce their expense of living below a reasonable standard in order to escape dependency, and thereby absolve an employer from the payment of compensation who would otherwise be liable for the payment thereof. Dazy v. Apponaug Co., 36 R. I. 81, 89 Atl. 160;Matter of Rhyner v. Huber Building Co., 171 App. Div. 56, 156 N. Y. Supp. 903; Honnold on Workmen's Compensation, § 70; Bradbury on Workmen's Compensation, p. 315.

In harmony with the foregoing statement, and the authorities cited in support thereof, this court has recently said in cause No. 9951 (In re Carroll, 116 N. E. 844):

“To confine the inquiry to the question whether the family of the deceased workman could have supported life without any contribution from him, or whether such contributions were absolutely necessary in order that the family might be reasonably maintained, is not a fair test of dependency; but rather the inquiry should include the question whether contributions from the workmen were looked to, depended and relied on, in whole or in part, by the family for means of reasonable support. Howells v. Vivian, etc., 85 L. T. 529; Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245.”

Following the rule thus stated, it is clear that the word “dependent” as used in the Indiana Workmen's Compensation Act, should be given a meaning broad enough to include the reasonable needs of a parent in the proper support of himself and his dependent family. Such construction is in accord with the decisions in many well-considered cases in other jurisdictions, where compensation laws are in force with similar provisions.

[2][3] Whether an applicant in any given case is entitled to compensation as a dependent will necessarily be determined from conditions and circumstances disclosed by the evidence. In the facts submitted it is stated that the weekly contributions made by the...