Martin v. Narragansett Electric Lighting Co.

• Decision Date: 06 June 1928
• Docket Number: No. 831.,831.
• Citation: Martin v. Narragansett Electric Lighting Co., 49 R.I. 265, 142 A. 225 (R.I. 1928)
• Parties: MARTIN et al. v. NARRAGANSETT ELECTRIC LIGHTING CO.
• Court: Rhode Island Supreme Court

142 A. 225

MARTIN et al.

v. NARRAGANSETT ELECTRIC LIGHTING CO.

No. 831.

Supreme Court of Rhode Island.

June 6, 1928.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Petition under Workmen's Compensation Act by Herbert E. Martin and another, father and mother of deceased, against the Narragansett Electric Lighting Company, in which brother and sister of deceased intervened and his children were made parties. From the decree in favor of one of the children, petitioners and interveners appeal. Modified to provide for both children.

Cooney & Cooney, of Providence, for petitioners, appellants.

Lester T. Murphy and William G. Troy, both of Providence, for Gwendolyn L. Martin.

Christopher J. Brennan, of Providence, for Laurence and Mildred Martin.

Clifford Whipple and Earl A. Sweeney, both of Providence, for Narragansett Electric Lighting Co.

RATHBUN, J. This is a petition brought under the provisions of chapter 92 of General Laws 1923, known as the Workmen's Compensation Act, for compensation for the death of Leo E. Martin, who died from injuries arising out of and in the course of his employment by the Narragansett Electric Lighting Company. The petition is brought by the deceased's father and mother, who contend that they were at the time of the son's injury and death partially dependent upon him for support. The deceased lived with his parents, the petitioners, as did also a brother and sister of deceased. The brother and sister, contending that they were wholly dependent upon the deceased, were permitted to intervene and become parties. Two children of the deceased, Gwendolyn L. Martin, age 12 years, and Milton E. Martin, age 10 years, were, by order of the superior court, made parties respondent, and a guardian ad litem was appointed for them by said court. Said children of the deceased employee were living apart from their father with their mother, who had obtained a decree of absolute divorce from him. Said decree granted the care and custody of said children to their mother, but made no provision for the children's support.

The Narragansett Electric Lighting Company admitted liability, and the real dispute was between the different claimants for compensation. The justice who heard the petition found that the daughter received regularly for her support the sum of $3 per week from her father and that "the son apparently received nothing more than small presents, which could not be counted as determining dependency"; that the daughter was dependent upon the deceased for support and that the son was not.

Article 2, § 7, of said chapter, provides in part as follows:

"Sec. 7. The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee: * * * (c) A child or children * * * upon the parent with whom he is or they are living or upon whom he or they are dependent at the time of the death of such parent, there being no surviving dependent parent. In case there is more than one child thus dependent, the compensation hereunder shall be divided equally among them."

There being no surviving dependent parent, said justice, in applying the above statutory provisions to his findings of fact, ruled that, the daughter being dependent upon the father to some extent for support, it was conclusively presumed that she was wholly dependent upon him. The decree which was entered provided that the daughter, Gwendolyn, was entitled to the total compensation due from the respondent. Appeals from this decree were taken by the petitioners, who are the employee's father and mother, and by the brother and sister.

So far as appears from his rescript, said justice did not consider the question whether a child who is supported by charity apart from the father— who at the time he was killed is providing nothing for the child's support— is entitled, in the absence of a dependent mother, to compensation by reason of...