St. Paul-Mercury Indem. Co. v. Robinson

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: St. Paul-Mercury Indem. Co. v. Robinson, 88 Ga.App. 217, 76 S.E.2d 512 (Ga. App. 1953)
• Decision Date: 02 May 1953
• Docket Number: No. 34541,No. 1,PAUL-MERCURY,34541,1
• Parties: ST.INDEMNITY CO. et al. v. ROBINSON

Page 512

76 S.E.2d 512

88 Ga.App. 217

ST. PAUL-MERCURY INDEMNITY CO. et al. v. ROBINSON.

No. 34541.

Court of Appeals of Georgia, Division No. 1.

May 2, 1953.

Rehearing Denied May 14, 1953.

Syllabus by the Court

Under the facts of this case, the superior court did not err in affirming the award, by the State Board of Workmen's Compensation, of death benefits to a minor child who was actually dependent upon the deceased employee.

Fulcher, Fulcher & Hagler, Augusta, for plaintiffs in error.

Bell & Bell, Augusta, for defendant in error.

SUTTON, Chief Judge.

Rubin Simmons sustained an injury arising out of and in the course of his employment by Rutland Contracting Company, and, as a result of this injury, he died on May 3, 1952. His average weekly wage was in excess of $48. His employer and its insurance carrier requested a hearing before the Workmen's Compensation Board to determine the person to whom the death benefits provided by law should be paid. The above-stated facts were admitted at the hearing.

The director who heard the case found the following facts: Rubin Simmons and Carrie Bell Simmons were married in 1940 and lived together from that time until his death. They had no children of this marriage. Carrie Bell Simmons admitted that she had married one Tom Harris before she married Rubin Simmons, and that, so far as she knew, this first marriage was undissolved. Carrie Bell Simmons had an illegitimate child, whom she named Carrie Bell. Neither Rubin Simmons nor Tom Harris was the father of Carrie Bell. On November 16, 1948, Carrie Bell gave birth to an illegitimate child, whom she named Linda Robinson.

Carrie Bell Simmons and Rubin Simmons kept Linda Robinson from the time of her birth, and Rubin Simmons supported her and accepted her as his own child. Linda Robinson was living with Carrie Bell Simmons at the time of the hearing. The plaintiffs in error concede that these findings of fact were supported by uncontroverted testimony.

Based upon these facts, the director found that Linda Robinson was totally dependent upon Rubin Simmons, and he made an award of death benefits for her use, appointing Carrie Bell Simmons as her guardian. See Code, § 114-421, Ga.L.1952, pp. 271, 272.

The contention of the plaintiffs in error is that the findings of fact do not support the award, because Linda Robinson was not related to Rubin Simmons, and therefore he was under no legal or moral obligation to support her; and because Carrie Bell Simmons, not being the lawful widow of Rubin Simmons, and not otherwise related to him, is not entitled to compensation death benefits even though she was totally dependent upon him, and hence, a fortiori, the illegitimate daughter of Carrie Bell Simmons' illegitimate daughter is not entitled to such death benefits.

Code, § 114-414 provides that the husband, wife, or child of a deceased employee 'shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee', and further provides: 'In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the facts at the time of the accident'. Linda Robinson, to whom the board awarded compensation for the death of Rubin Simmons, does not come within the class of persons conclusively presumed to be wholly dependent upon, nor is she related to, Rubin Simmons, the deceased employee.

But under the latter provision of this section, 'The question of dependency is one of fact, to be determined according to the facts and circumstances of each particular case, from the amounts, frequency, and continuity of actual contributions of cash or supplies, the needs of the claimant, and the legal or moral obligation of the employee.' Maryland Casualty Co. v. Campbell, 34 Ga.App. 311, 129 S.E. 447, 448. It was held in that case that continued contribution of cash or supplies is evidence of dependency, but not an essential thereof. A legal obligation of the deceased employee to support the claimant is not necessary to show the claimant's dependency. Glens Falls Indemnity Co. v. Jordan, 56 Ga.App. 449, 457, 193 S.E. 96. And even a moral obligation to support is not an essential element of dependency; for in Bituminous Casualty Corp. v. Williams, 80 Ga.App. 337, 56 S.E.2d 157, it was held that the evidence authorized the board's finding that a first cousin of the deceased employee was totally dependent upon him at the time of his death, and the award to such a dependent was affirmed. We know of no moral obligation to support a first cousin, such as there may be to support a parent, according to Glens...