Clark Quarry Company v. Moore

3 S.W.2d 763, 223 Ky. 379, 1928 Ky. LEXIS 343

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 28, 1928
• Status: Published

Opinion

Opinion of the Court by

Judge Logan

Affirming.

While Grover Moore was employed hy the appellants, and in the course of his employment, he was killed in an accident. Appellants and Grover Moore had accepted the provisions of the Workmen’s Compensation Act (secs. 4880-4987, Ky. Stats). Grover Moore was about 37 years of age and was unmarried. The appellee, Mary E. Moore, was his mother. She had been a widow for 23 years. At the time of his death she had no property of any kind and no income. She was unable to work owing to her physical condition. She lived with a daughter who was married. This daughter had no property and no income other than such as she earned as the result of her labors. The mother paid board to the daughter and also helped to pay the rent of the place where they resided. Grover Moore was 14 years old when his father died while living in Ohio. He began work about that time, contributing to the support of his mother. The family moved to Maysville, Ky., where they resided for about 9 years. Grover Moore remained at home during the greater portion of the time contributing to the support of his mother. About 8 years before his death his mother moved to Newport, where she resided with her daughter. Grover Moore also made that his home, but he was usually away at work. He gave his mother money from time to time which she used towards her support. During the year preceding his death he had visited his mother about three times, and each time he gave her a few dollars. In addition he sent her small contributions on three or four occasions. The evidence is not definite as to how much he contributed towards her support during the last year of Ms life. Probably tbe sum was not more than $80.

Tbe mother filed claim before the "Workmen’s Compensation Board on tbe ground that she was dependent upon her son, Grover, for support. Tbe board beard evidence and concluded that she was one-tbird dependent upon her son, and awarded her $4 a week for 335 weeks. Upon a review of tMs award in tbe Mason circuit court it was approved and confirmed.

It is urged by appellants that Grover Moore did not contribute towards tbe support of bis mother during tbe last year of bis life exceeding 8.6 per cent, of bis earnings, and that tbe board should have made an award no greater than that percentage of $12, which is tbe maximum award which could have been made by tbe board to a total dependent. On tbe other band, it is urged by counsel for appellee that tbe proof was sufficient to show that she was wholly dependent, and that tbe board was justified by tbe evidence in maldng tbe award of $4 a week. We cannot agree with tbe contention of counsel for appellants, and we are unwilling to decide that the contention made by counsel is correct even if tbe evidence showed that appellee was a partial dependent, but we are not deciding that point.

Under tbe authority of R. C. Tway Coal Co. v. Fitts (Ky.) 1 S. W. (2d) 1082, and tbe case of Fordson Coal Co. v. Burke, 219 Ky. 770, 294 S. W. 497, we are of tbe opinion that tbe board was acting within tbe law and the facts in making tbe award of $4 a week for 335 weeks.

In tbe case of Kelse Branch Coal Co. v. Spradlin’s Guardian et al., 222 Ky. 432, 300 S. W. 892, the court said:

“Total dependence exists if tbe dependent receives all of bis support from tbe deceased employee, regardless of tbe proportion of tbe employee’s wages contributed to tbe dependent. ’ ’

If tbe board bad found that tbe mother of Grover Moore was wholly dependent upon her son for her support and bad awarded her tbe full compensation which could be allowed under tbe law, there was sufficient evidence in tbe record to have supported such an award. She is not complaining, and appellants certainly have no ground to complain.

Judgment is affirmed.