Romano v. Littleton Const. Co.

• Decision Date: 23 March 1949
• Citation: Romano v. Littleton Const. Co., 95 N.H. 404, 64 A.2d 695 (N.H. 1949)
• Parties: ROMANO v. LITTLETON CONST. CO.
• Court: New Hampshire Supreme Court

64 A.2d 695

ROMANO

v.LITTLETON CONST. CO.

Supreme Court of New Hampshire.

March 1, 1949.

Rehearing Denied March 23, 1949.

Exceptions from Superior Court, Merrimack County; Leahy, Judge.

Proceeding under the Workmen's Compensation Act by Saverio R. Romano, administrator of the estate of Rocco Di Nardio, deceased, claimant for the death of his intestate, opposed by Littleton Construction Company, employer. Award for total dependency, and the employer excepts.

Exceptions overruled.

Petition, for workmen's compensation under Public Laws, c. 178, as amended by Laws of 1939, c. 195, for the death of plaintiff's intestate, Rocco Di Nardio. On July 11, 1941 the deceased was in the employ of the defendant, which was engaged in building a road between Franklin and Bristol. He received an average weekly wage of $33. The deceased was struck and killed by a speeding automobile. It is agreed that the accident arose out of and in the course of his employment. The deceased left a widow in Italy whom he had not seen since August 19, 1920. He came to this country in 1921. The plaintiff claimed that the widow at the time of the accident was wholly dependent in fact upon her husband.

The case was tried by the Court upon an agreed statement of certain facts and the depositions of the widow and the administrator. No agreement was reached concerning the evidence contained in said depositions or upon the question of dependency. The Court found: ‘that the petitioner has sustained his burden of proof as to dependency in that there was a wife living in Italy and dependent in fact on Di Nardio at the date of the accident resulting in his death.’ It awarded the amount provided for total dependency, the sum of $4950. To this finding and award the defendant duly excepted. A bill of exceptions was allowed by Leahy, J. Orr & Reno, of Concord, for plaintiff.

Frederick W. Branch and Paul E. Nourie, both of Manchester, for defendant.

JOHNSTON, Justice.

The finding of the Trial Court concerning the total dependency of the widow should stand unless so clearly erroneous that it could not reasonably be made. The case of Veazie v. Staples, 309 Mass. 123, 33 N.E.2d 262, has been cited in oral argument to the effect that where all evidence of substantial importance was contained in public records, documents and depositions a question of fact of a divorce would be decided in the Supreme Court without deference to the decision of the Probate Judge. Such is not the procedure in this state. It is true that in the present case there was no direct testimony presented orally in the superior court. Yet the question of dependency is one of fact and within the jurisdiction of that court to determine. In the case of Howard v. Farr, 18 N.H. 457, an agreed statement of the evidence was submitted to the Trial Judge. In the law court it was held: ‘We therefore cannot undertake to consider the evidence contained in the case, further than to ascertain that it is such as might justify a verdict either way. The court will not assume to pronounce upon the weight of evidence.’ ‘It was for the superior court to determine the facts as to dependency, and the finding cannot be set aside when the evidence is not conclusive against it.’ Lapoint v. Winn, 81 N.H. 357, 359, 126 A. 380, 381. An issue of fact is exclusively within the jurisdiction of the superior court regardless of the manner in which the evidence is presented. ‘The judicial system as now established requires that questions of fact arising in the course of trials in the superior court shall be there decided, and the jurisdiction of the Supreme Court is thereby limited to the question of law, whether there was evidence upon which the decision could reasonably be made as it was.’ Nawn v. Boston & M. R. Railroad, 77 N.H. 299, 304, 91 A. 181, 184; See also, Crowley v. Crowley, 72 N.H. 241, 56 A. 190; Champollion v. Corbin, 71 N.H. 78, 51 A. 674; Martin v. Livingston, 68 N.H. 562, 39 A. 432.

There is no doubt that the workman left a widow. There is no legal presumption that she was dependent upon her husband. Compensation is sought under Laws of 1939, c. 195, § 2, which provides for such, ‘if the workman leaves any widow * * * then wholly dependent in fact on his earnings'. Public Laws, c. 178, as amended by Laws of 1931, c. 131, provided for a widow ‘in part only dependent’. The test for determining her dependency is whether she was receiving support and...