Zachery v. Royal Indem. Co

• Court: Georgia Court of Appeals
• Writing for the Court: TOWNSEND,
• Citation: Zachery v. Royal Indem. Co, 56 S.E.2d 812, 80 Ga.App. 659 (Ga. App. 1949)
• Decision Date: 05 December 1949
• Docket Number: No. 32772.,32772.
• Parties: ZACHERY. v. ROYAL INDEMNITY CO. et al.

56 S.E.2d 812

80 Ga.App. 659

ZACHERY.

v.ROYAL INDEMNITY CO. et al.

No. 32772.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1949.

Rehearing Denied Dec. 19, 1919.

Proceeding under the Workmen's Compensation Act by Lithonia Zachery, claimant, opposed by the M. F. M. Company, employer, and Royal Indemnity Company, insurance carrier, to recover death benefits by reason of death of claimant's son.

An award of the Compensation Board in favor of the claimant was reversed by the Superior Court of Cobb County, Howell Brooke, J., and claimant brought error.

The Court of Appeals, Townsend, J., reversed on the ground that claimant was entitled to award after her son's widow had waived right to death benefits by failure to file claim within statutory period.

Syllabus by the Court.

Where, as here, an employer and its insurance carrier are subject to the provisions of the Workmen's Compensation Law, and the deceased employee leaves surviving him a wife who has not voluntarily deserted or abandoned him at the time of the accident, such wife is conclusively presumed to be totally dependent upon her husband, and is eligible for death benefits under the Act. Where, however, the wife waives her right to such benefits by refusing to file a claim therefor within the period of limitations, and where a proper claim is filed within such period by the mother of the decedent, who was totally dependent upon him for support, the employer and insurance carrier cannot avoid their liability for the payment of death benefits by merely showing that there is a widow in life. Upon the death of the employee, the liability of the employer becomes fixed and he is bound to pay the death benefits under the Act. If the beneficiary primarily entitled thereto waives compensation, beneficiaries secondarily entitled thereto may recover.

Within one year from the death of her son, Floyd Zachery, the plaintiff in error, Lithonia Zachery, filed her claim for death benefits under the Workmen's Compensation Law, alleging that her son met his death as a result of injuries arising out of and in the course of his employment by the M. F. M. Company and that she was totally dependent upon her said son for support. From an award of a single Director finding in her favor as the sole total dependent, which award was affirmed by the full Board, the Royal Indemnity Company as insurer and the M. F. M. Company, the defendants in error here, appealed to the Superior Court of Cobb County, which Court reversed the judgment of the Board awarding the claimant compensation, and from this judgment she appeals.

The evidence developed that the deceased, Floyd Zachery, had sustained the injuries resulting in his death in the course of his employment by the defendant in error; that at the time of his death he had living a wife who had separated from him in 1938 and had for several years past been self supporting; that he had effected a bigamous marriage with another woman with whom he had been living in one side of his mother's house, and that the mother claimant occupied the other half of the house with another son; that his wife knew all these facts, had visited the house on several occasions, had been aware of her husband's death and stated to the Board that she had filed no claim in the case because, "I thought his mother was already done filed a claim and was already getting his money; getting money, you know, to take care of herself; I would rather she would get the money to take care of herself than for me to get it."

The evidence as to the total dependency of the mother upon her deceased son was in some conflict, but there was evidence from which the Board might have determined that she was in fact totally dependent upon his earnings and that he did support her. The judge of the Superior Court reversed the decision of the Board upon the ground that the mother was not eligible for benefits under the Workmen's Compensation Law due to the fact that the deceased had a wife living at the time of his death. The judgment complained of is as follows: "The foregoing case coming on for hearing, and after hearing arguments of counsel for the parties; it is considered, ordered and adjudged by the Court that the award made by the Director to the Claimant, the mother of the deceased, be, and the same is hereby reversed. It appearing from the record that at the time of the injury and death of the employee that he had a living wife who, under Code, § 114-414 'shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee', and it not appearing from the record that she had voluntarily deserted or abandoned him at the time of the accident."

Dobbs & McCutchen, Atlanta, for plaintiff in error.

Harry L. Greene, Atlanta, Neely, Marshall & Greene, Atlanta, for defendants in error.

TOWNSEND, Judge (after stating the foregoing facts.)

At the time of the initial hearing before the Board of Workmen's Compensation, more than a year had elapsed since the death of the employee. No claim had been filed for death benefits other than that of the decedent's mother, and all other claims were then barred by the statute of limitations. It is apparent that, had the wife filed her claim within the statutory period, she would have been entitled to the death benefits allowable under the act, and had there been no wife the mother would have been entitled to such benefits. The precise question is whether in the absence of a claim by one primarily entitled to compensation under the law, the claim of a person secondarily entitled to benefits may be considered and adjudicated.

In New Amsterdam Casualty Co. v. Sumrell, 30 Ga.App. 682, 689, 118 S.E. 786, 789, it was held: "The Compensation Acts, though in derogation of the common law, being highly remedial in character, should be liberally and broadly construed, to effect their beneficent purposes." Counsel for the plaintiffs in error contend that...