Rudnick v. White Brothers

• Decision Date: 13 May 1920
• Citation: 109 A. 881,30 Del. 576
• Court: Delaware Superior Court
• Parties: FRED RUDNICK and LENA RUDNICK, dependents of Jacob Rudnick, deceased, Claimants, v. WHITE BROTHERS, Employer

109 A. 881

30 Del. 576

FRED RUDNICK and LENA RUDNICK, dependents of Jacob Rudnick, deceased, Claimants, v. WHITE BROTHERS, Employer

Superior Court of Delaware, New Castle County

May 13, 1920

Superior Court for New Castle County, March Term, 1920.

APPEAL No. 143, to the pending November Term, 1919.

Proceeding under the Workmen's Compensation Act (Rev. Code 1915 §§ 3101-3193) before the Industrial Accident Board (No. 9026, November 15, 1919), by Fred Rudnick and Lena Rudnick to obtain compensation for the death of Jacob Rudnick, their son, against White Brothers., the employer. The Industrial Accident Board disallowed the claim for compensation, and the claimants appeal. Award sustained.

The reasons assigned for the appeal are briefly: It appears from the decision and judgment of the board: (1) That the claimants and appellants were dependents of the deceased; (2) that a full hearing of all the material facts bearing upon the claim was not had before the board; and (3) that the board applied a test which is erroneous as a matter of law namely, whether or not the claimants could support life without the contributions of the deceased.

A majority of the board found that the claimants "were not dependent to any extent upon Jacob Rudnick for support at the time of his death."

Under the statute and rule of court, appeals from the Industrial Accident Board are heard by the court from the record of the proceedings before the board, without the aid of a jury. Section 111 (Code, § 3193r) 30 Del. Laws, 540.

For the appellants the record was relied on to sustain the several grounds of appeal.

For the appellee it was urged: (a) That dependency under the act cannot be presumed, but must be established to the satisfaction of the court, and the board having found as a fact that dependency did not exist, the court should not reverse the finding, Bradbury's Workmen's Compensation, pp. 1071, 1076, 1082, 1084, 1089, 1091, 1094 1096, and 1098; (b) that the record fails to disclose that the board omitted to receive or consider any testimony offered, or what material fact bearing upon the claim was not heard by that board; and (c) that it appears that the board did not apply the test of whether or not the claimants could support life without the contributions of the deceased, but on the contrary said:

"The test of dependency is not whether the family could support life without the contributions of the deceased, but whether they depended upon them as a part of their income or means of living." Shaw Co. v. Palmatory, 7 Boyce 197, 105 A. 417; 13 Neg. Cas. 315 (note, 315 to 333).

The general character of the testimony on the question of dependency is sufficiently shown in the opinion of the court.

The award of the board is affirmed, and the costs of the appeal are awarded and taxed against the appellees.

Philip L. Garrett for claimants.

William S. Hilles for Employer.

PENNEWILL, C. J., BOYCE and CONRAD, J. J., sitting.

OPINION

Per Curiam:--While the case before the court is very much like the case of Shaw Co. v. Palmatory, 30 Del. 197, 7 Boyce 197, 105 A. 417, in its facts, we think there is sufficient dis-similarity to distinguish the one from the other.

In the Palmatory Case, in which the board found there was dependency, the testimony on material points was reasonably definite and clear, while in the present case it is exceedingly vague and uncertain. It does not appear how much the father made in his business, or why he did not contribute more to the support of his family. While it was shown that practically all of the son's wages...