Poccardi v. State Comp. Com'r. Giovanni Cucca Claim.
| Decision Date | 11 January 1917 |
| Docket Number | No. 3031.,3031. |
| Court | West Virginia Supreme Court |
| Parties | Gaetano Poccardi, Royal Consul, Etc. v. State Compensation Com'r. Giovanni Cucca Claim. |
(Opinion filed February 27, 1917.)
By paragraph 3, section 33, chapter 10, Acts of 1913, to entitle one to participate in the Workmen's Compensation Fund he must have been at the time of the injury causing death a dependent in whole or in part for his or her support upon the earnings of the deceased employee, (p. 687).
er Review.
Section 43, of said act, does not, as does the English statute, and some of the statutes of the other states, make the findings of the court or commissioner on the question of dependency conclusive, and on appeal to this court the findings of the commissioner may be reviewed on the evidence before him. (p. 687).
Jury.
The question of dependency in England and in this country, under Workmen's Compensation Laws, is one of fact and not of law, to be determined by the evidence in each particular case; but where the evidence is all certified and there is no conflict, a question of law, and not of fact, may be thus presented, (p. 688).
Effect.
While under our statute the findings of the commissioner is not conclusive, it should be treated as the finding of a judge, or the verdict of a jury, and should not as a general rule be set aside if there is evidence to support it. (p. 688).
The word 11 dependent'', in our act, as in the British act, and the acts of other states, means dependent for the ordinary necessaries of life, for one of his class and social station in life, taking into account the financial and social position of the recipient. The extent or degree of the dependency is not important. If dependency existed at all right to participate in the fund is established, (p. 689).
And the question in such cases is not whether the claimant could have maintained himself and family with the bare necessaries of life without the assistance of the earnings of the injured or deceased employee, but whether he was actually dependent upon such earnings for his support and maintenance, (p. 689).
Appeal from order of State Compensation Commissioner.
Proceeding under Workmen's Compensation Act by Gaetano Poccardi, Royal Consul, etc. (Raffaele Cucca and Anna Luigia Pirisi, claimants), to obtain compensation for the death of their son Giovanni Cucca. Compensation was denied by the State Compensation Commissioner, and claimants appeal.
Order of Commissioner affirmed.
A. A. Lilly, Attorney General, and Frank Lively, Assistant Attorney General, for appellee.
Upon an appeal from the final action of the State Compensation Commissioner, denying to the claimants, Raifaele Cucca and Anna Luigia Pirisi, respectively the father and mother of Giovanni Cucca, deceased, right of participation in the Workmen's Compensation Fund, as persons partially dependent on his contribution for their support.
Claimants are citizens and residents of the Kingdom of Italy; their son Giovanni Cucca, a subject of that Kingdom, was killed in a coal mine of the New River Collieries Company, at Eccles, West Virginia, in April, 1914.
The Commissioner found as a fact that the claimants had not proven themselves to be such dependents within the provisions of the Workmen's Compensation Act, as entitled them to participate in said fund, and denied them relief on this ground alone.
Paragraph (3) of section 33, chapter 10, Acts of 1913, the statute then in force, defines "dependent", as used in said act, to mean "a widow, invalid widower, child under the age at which he or she may be lawfully employed in any industry, invalid child over such age, father, mother, grand-father or grand-mother, who at the time of the injury causing death is dependent in whole or in part for his or her support upon the earnings of the employe."
Claimants are, therefore, of the class or classes of persons entitled to participate in said fund if in fact dependents. The evidence of dependency presented by them consisted of very brief affidavits, one by the father, of November 8, 1914, supplemented by another explanatory of the first, of January 18, 1915; one of January 18, 1915, by a neighbor and frequent visitor in the father's home, and who had assisted him in his correspondence with his son in the United States; another of June 21, 1914, by four witnesses, and four certain so called transmission receipts, showing remittances by deceased to his father in Italy as follows: One of December 29, 1911, for 100 lire; one of April 4, 1912, for 200 lire; one of August 5, 1912, for 150 lire; and one of January 2, 1913, for 250 lire. There is also filed another receipt of November 21, 1912, showing transmission to decedent's grandmother, not a claimant, of 20 lire.
The substance of the affidavits of the father is that deceased was in the habit of sending him on an average of 1500 lire annually, or an average of 125 lire per month, of which he used 90 lire in the exclusive support of the family, "family" being explained in his supplemental affidavit to mean himself and his wife, deceased's mother, though he sent that amount for the family, for, he says, he used to provide for the needs of the family with his work; the balance of the money to remain subject to the disposition of the son. The affidavit of the friend and neighbor is to the effect that he assisted the father in correspondence with the son and read a letter from the latter in which, as his testimony is translated, the son "stated that he would have sent 125 lire monthly for the support of his parents", and that the father answered saying "that for his support and that of his wife he would have used ninety lire, and that he would take care of his children with his own work, the remainant he would have saved for and on account of his son", that the son "replied to the disposition of his father authorizing him to spend even more.'' The affidavit of the four persons is that during the time the son was in America he '' provided to the support of his family with an average of about 1500 lire yearly, and that the said family has no other means besides the earnings deriving from the daily work of the father Raffaele Cucca." How these witnesses were qualified to testify to these facts does not appear.
There is no evidence as to what, estate claimants possessed, nor as to the amount of the father's earnings; nor is there any sworn testimony as to his age, or the character of his employment, nor as to his social station, except what may be inferred from the other facts shown; nor is there any evidence as to the earning capacity or earnings in fact of the other members of the family; nor as to how much of these earnings was actually used or actually necessary for the support of the family; the only evidence submitted on these questions being the certificate of the mayor of the home town in Italy showing that the other members of the family consisted of two brothers and two sisters, and stating that this family is "in poor economical conditions."
Does this evidence, as a matter of law, conclusively establish the fact of dependency? It will be observed that there is no evidence of any actual remittances by deceased to claimants within one year of his death; the correspondence referred to by one of the witnesses between father and son is not produced, or accounted for. Whether deceased actually sent any money to claimants within the year preceding his death is left to be inferred from the general statement that deceased was in the habit of sending his father about 1500 lire yearly, a fact which no doubt could and should have been shown by positive evidence, if the fact was as we are asked to infer. So far as appears there was no legal obligation on deceased to contribute to the support of his father's family. For aught that appears he may have ceased to do so for at least a year prior to his...
To continue reading
Request your trial
-
Glens Falls Indem. Co. v. Jordan
... ... and Mrs. Shelley Jordan Sr., made claim with the ... Department of Industrial Relations ... of a state of dependency are an obligation to support, the ... 401, 111 N.E. 47; Poccardi ... v. State Comp. Com'r, 79 W.Va. 684, 91 S.E ... ...
-
Glens Falls Indem. Co v. Jordan Et Ux
...A. 160; Henry Pratt Co. v. Industrial Comm., 293 Ill. 367, 127 N.E. 754; Kenney's Case, 222 Mass. 401, 111 N.E. 47; Poccardi v. State Comp. Com'r, 79 W.Va. 684, 91 S.E. 663; Rhyner v. Hueber Bldg. Co, 171 App.Div. 56, 156 N.Y.S. 903. However, it is equally true that the fact that the claima......
-
Manning v. State Compensation Com'r
... ... A claim ... for compensation was made under date of July ... 106 W.Va. 14, 144 S.E. 568; Poccardi v. State ... Compensation Commissioner, 79 W.Va ... ...
-
Spencer v. State Workmen's Compensation Com'r
...this language will reveal some of the court's concerns in these matters. The seminal opinion of Poccardi v. State Compensation Commissioner, 79 W.Va. 684, 91 S.E. 663 (1917), involved a case where residents of Italy sought dependency benefits as a result of the death of their son, a West Vi......