Thomas v. Raleigh Gas Co.

• Court: North Carolina Supreme Court
• Citation: Thomas v. Raleigh Gas Co., 218 N.C. 429, 11 S.E.2d 297 (N.C. 1940)
• Decision Date: 07 November 1940
• Docket Number: 450.
• Parties: THOMAS v. RALEIGH GAS CO. et al.

11 S.E.2d 297

218 N.C. 429

THOMAS v. RALEIGH GAS CO. et al.

No. 450.

Supreme Court of North Carolina

November 7, 1940

The plaintiff, Minnie Lee Thomas, brought this proceeding before the Industrial Commission to have an award made to her, as dependent, because of the death of her son, James Thomas while in the service of the defendant Gas Company. At the final hearing before the full Commission an award was made to the plaintiff, and from the order of the Industrial Commission the defendants appealed to the Superior Court where the matter was heard by Judge Harris on June 29, 1940. From the judgment affirming the award the defendants appealed to this court.

We quote from the record certain admissions which narrow the scope of inquiry on the hearing before the Commission, and which are effectual here: "When this case was called for a hearing counsel agreed that both the plaintiff and defendant employer are subject to and bound by the provisions of the Act; Liberty Mutual Insurance Company is the carrier for the defendant employer; and an average weekly wage of the deceased employee at the time of his accident resulting in his death was $14.66; the deceased employee suffered an accident November 2, 1939, arising in the course of and out of his employment from which injuries resulting from the accident he died, met his death. The sole question involved at the hearing was the party or parties to whom compensation should be paid on account of the death of the said deceased employee."

Upon that question the pertinent evidence is substantially as follows: The son, James Thomas, at the time of his death, was living in a house on East Martin Street in Raleigh, and the mother made her home with him. She testified:

"I lived by my boy. He took care of me. He took me to Raleigh and I lived there from 1936 up to the time of his death. During the four years or three years and a half I did no work myself. I didn't have any income during that time. Shortly before his death I stayed with Mrs. Haywood, who lived at 200 East Edenton Street. She is an old lady in her eightieth year, the mother of Mr. Holt Haywood and Mr. Alt Haywood. She is an invalid. I had been there with her two months and a half prior to James' death. She paid me $5.75 a week for that two months and a half. That is all the income I have had for the last three years. It was my duty to go there and sleep with her. My daughter-in-law prepared the meals and fixed them and all I had to do was eat mine and carry Mrs. Haywood's to her, to her bed. I had not been able to do any work since the early spring of 1937 when I had a stroke. I had been under a doctor's care from time to time since. I had not done any work nor earned any income other than Mrs. Haywood paid me for the eight weeks, and I was totally dependent upon my son James for my livelihood. He supported me all the time.

"She didn't furnish me breakfast. I got all my meals at home but sometimes I et (ate) supper with her. I did her laundry for her--that was the 75 cents. I started doing her laundry in 1937. I had my nephew, Sam Arthur, with me and my son James. Out of the money James gave me and the money I earned the three of us lived. James paid all the bills and the rent. We paid fifteen dollars a month rent. He paid for all the groceries. I don't know how much that was. He bought the groceries and brought them to me. All I had to do was tell him when I needed it and he brought it. I helped Mrs. Bailey who lived there nine years ago; haven't been doing it during the last three years. Mrs. Haywood didn't ask me to do nothing; she didn't do anything but stay in bed. I was there to do whatever was necessary, and for that she paid me $5.00 and in addition paid me seventy-five cents for the laundry.

"I am fifty-eight years old. Since 1936, when my husband died my son had supported me entirely. I did not work during that period except for this lady for two months prior to my son's death. During those two months my son bought all my groceries and paid the house rent. I had my money in the bank; didn't use any of it for my support. After he died that was the money I had to fall back on. He bought my clothes during this period, everything. He paid my house rent. He didn't support anybody else that I know of; he didn't have a wife. He had no children. He had never been married. He didn't support any brothers or sisters. I was the only one dependent upon him."

Another son of plaintiff, with his family, lived in one end of the house, paying the rent on rooms occupied by him. James, (the deceased), paid the rent on the rooms occupied by himself and his mother. There was temporarily with her at some times a grandson, who furnished her no support.

Plaintiff testified that she had about $600 insurance from her husband at his death, but that all of it had been spent for bills.

In its main particulars the testimony of the plaintiff was supported by a son who occupied rooms in another part of the house, and there was much evidence from this source that the mother was entirely dependent upon the deceased son, James Thomas.

Upon this evidence the Industrial Commission found that the plaintiff was wholly dependent upon the deceased employee James Thomas, for support; that since 1936 she has been physically unable to perform average manual labor; that she has during that time earned 75 cents per week for washing, and for two months immediately previous to his death she had slept in the room with an ill lady and performed some nominal services for her, receiving a sum of $5 a week, and that she had saved and placed in the bank the principal portions of these earnings, but used a small part for buying minor luxuries she desired to obtain; and, again, "that specifically the said Minnie Lee Thomas was wholly dependent upon the deceased James Thomas for support at the time of his death." There is a further finding that the deceased had no other dependent with the exception of Sam Bonaparte, who was partially dependent. Thereupon, the full Commission followed its findings of fact with the conclusion of law that the plaintiff was wholly dependent upon her deceased son and that Sam Bonaparte was only partially dependent, and made an award, (based upon the average weekly...