Pluchino v. Piccolo

• Decision Date: 27 December 1934
• Citation: 175 A. 812
• Parties: PLUCHINO v. PICCOLO.
• Court: New Jersey Supreme Court

175 A. 812

PLUCHINO

v. PICCOLO.

Supreme Court of New Jersey.

Dec. 27, 1934.

Certiorari to Court of Common Pleas, Hudson County.

Proceedings under the Workmen's Compensation Act by Santo Piccolo, by his next friend and guardian, Michael Piccolo, opposed by Salvatore Pluchino, for the death of Santo Piccolo. The referee dismissed the petition, but the county court of common pleas on appeal awarded compensation, and employer brings certiorari.

Judgment of county court of common pleas reversed, and cause remanded.

Argued May term, 1934. before TRENCHARD, HEHER, and PERSKIE, JJ.

Edwin Joseph O'Brien, of Newark, for prosecutor.

N. Louis Paladeau, Jr., of Jersey City, for respondent.

HEHER, Justice.

The infant petitioner was a grandchild of Santo Piccolo, who was killed on November 24, 1931, while in the employ of prosecutor, Pluchino. Asserting dependency within the purview of the Workmen's Compensation Act, the infant, by his next friend, filed a petition for compensation. It is claimed that the deceased contributed from $6 to $8 per week for the support and maintenance of the infant, and that the requisite dependency therefore existed. This was denied by respondent's answer, and, after hearing, the referee concluded that "claimant was not supported either wholly or partly by the decedent within the meaning of the" compensation act, and dismissed the petition. The Hudson county court of common pleas, on appeal, found that the petitioner was "partially dependent" upon the deceased, at the time of his death, and awarded compensation at the rate of $2.10 per week from November 25, 1931 to December 26, 1936. This certiorari brings up that judgment.

We are of opinion that the finding of dependency is not supported by the proofs. The infant's mother was the only witness. In 1926, some five years before the death of decedent, the marriage between her and the infant's father was dissolved by a decree of divorce. She was given custody of the child. The decree directed the infant's father to pay $6 per week for his support and maintenance. The infant was then six years of age. When the separation occurred, she and the boy took up their residence with her father. The latter, so she testified, supported the infant for a time. The infant's father, it would seem, supported him for a year after the decree of divorce was entered. In this connection, the witness testified: "At the time I divorced my husband, he was supporting the boy about a year, my husband, and it was very hard for me to get him more money." She therefore appealed to the deceased, and he, she maintains, "promised me so long as he makes any money he will pay $6 a week; he will give it to his son to give it to the boy." Subsequently, decedent informed her that "he was paying this money." While the witness insisted that decedent's promise had been redeemed, she admitted an utter lack of testimonial knowledge of the fact. It was a mere opinion based entirely upon decedent's statement to her that he was "paying this money." She admits further that none of these payments was made direct to her, or to the infant, by the deceased. The latter furnished clothes and toys for his infant grandson, and on occasions gave her money to purchase clothing for the child. It is significant that these...