Ross, Dependent of v. Ross

126 So. 2d 512, 240 Miss. 84, 1961 Miss. LEXIS 434
CourtMississippi Supreme Court
DecidedFebruary 6, 1961
DocketNo. 41649
StatusPublished
Cited by2 cases

This text of 126 So. 2d 512 (Ross, Dependent of v. Ross) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ross, Dependent of v. Ross, 126 So. 2d 512, 240 Miss. 84, 1961 Miss. LEXIS 434 (Mich. 1961).

Opinions

Ethridge, J.

The principal question in this workmen’s compensation case is whether claimant, Hugh Daniel Ross, was the “wholly dependent” brother of the deceased employee, Henry King Ross. The attorney-referee awarded compensation, and the Commission affirmed [89]*89Mm. From that order both claimant and the employer and carrier appealed. The former contended that the average weekly wages fixed by the Commission were too small, and the latter asserted they were too Mgh, and claimant was not wholly dependent upon deceased. The circuit court affirmed the Commission’s order in part, as to dependency, but modified the order as to average weekly wages, reducing substantially the amount found by the Commission. Claimant then took a direct appeal from the circrnt court’s judgment, contending it erred in reducing the average weekly wage. The employer and insurance carrier cross-appealed, claiming the circuit court erred in affirming the Commission on dependency.

Henry Ross, the deceased, worked for the appellee, his brother, Joe J. Ross, doing business as the Ross Rock-wool and Fiberglass Insulation Company. Henry was unmarried, and the “right-hand man” of Joe in the insulation business for sixteen years. On February 5, 1959, Henry Ross died wMle installing insulation materials in a new residence. There is no issue on this appeal of causal connection. Henry’s death arose out of and in the court of his employment. The question is whether Henry’s surviving brother Hugh Ross was wholly dependent upon Mm so as to be entitled to workmen’s compensation benefits; or, if Henry died without a dependent, the employer and carrier would have to pay $500 into the second-injury fund. Miss. Code 1942, Section 6998-37.

Miss. Code 1942, Section 6998-02 (12) defines dependent brother as one who is “wholly dependent” upon the deceased employee and incapable of self-support by reason of mental or physical disability.”

Code Section 6998-13 (g) provides that a surviving wife, child or children “shall be presumed to be wholly dependent. All other dependents shall be considered on the basis of total or partial dependence as [90]*90the facts may warrant.” This quoted provision makes the question of whether claimant is a dependent of the deceased employee one of fact. The Workmen’s Compensation Commission is the trier of the facts, and its decision will he affirmed if supported by substantial evidence. Moreover, where the evidence is in dispute or conflict, we must take it in the light most favorable to claimant, since the Commission found in his favor.

In view of these principles, we state the facts which the Commission was warranted in finding favorably to appellant. Claimant Hugh Ross is around fifty years of age and lives alone at Star, a small community south of Jackson. Claimant has only one arm, and is what his personal physician described as a “high moron.” He “cannot think and work on the job himself. He can do odd jobs. Now he sweeps out a church down there for them ...” but he could not hold a regular job. With one arm, Hugh does some small gardening in season. In short, claimant is undisputedly incapable of self-support by reason of mental and physical disabilities. Code Section 6998-02 (12).

The deceased employee, Hugh’s brother Henry, has been for many years Hugh’s principal and almost complete means of support. Henry contributed in cash to Hugh for many years a minimum of $50 a month. Hugh, the claimant, in addition to his mental and physical infirmities stated above, has suffered ill health for a number of years. Without Henry’s regular monthly contributions to him, claimant would have been left in destitute circumstances and in fact could not have lived without seeking help elsewhere. This regular monthly cash support furnished claimant by Henry Ross was at least 75% of the cash money received by Hugh. Hugh’s brother, Vernon Ross, made no contributions to him. Joe Ross, for whom the deceased employee worked, during the year preceding Henry’s death, sent Hugh three small [91]*91checks of $20, $10 and $35, respectively, in June, October and November 1958. He also paid a hospital bill for Hugh in 1958 in the amount of $279.59, which Joe said was for the purpose of simply relieving Hugh of that debt.

These three small checks Joe gave claimant were irregular, sporadic and insubstantial contributions. Nor do we think the payment by Joe of the hospital hill was anything other than an unanticipated gratuity from the brother who was not supporting claimant. As Joe said, it would not pay claimant’s grocery hills. It was in the nature of a gift.

The only income claimant received regularly was that furnished him by the deceased employee, and approximately $16.67 a month Hugh, earned sweeping a church. The Commission concluded, therefore, that claimant was dependent on no one else except the deceased brother Henry, and that he possessed no other consequential source or means of maintenance other than through this brother. In other words, claimant occupied the status of being entirely dependent upon Henry Ross.

The attorney-referee found: “All of the testimony and evidence indicated that Hugh D. Ross was dependent upon the deceased . . that Hugh was “the sole dependent of the deceased, over 18 years of age, hut incapable of self-support by reason of mental incapability and physical disability.” Hence the referee awarded compensation, and the Commission affirmed that award, in a memorandum opinion. The dissenting commissioner differed only on the amount of Henry’s average weekly wages. He concurred with the other two commissioners on the issue of compensability and therefore dependence within the statute. On appeal, the circuit court likewise affirmed the Commission on the question of dependency. The circuit judge held there was substantial evidence to support the award, finding the “primary support” was from deceased. The circuit court modified the Commis[92]*92sion’s order only as to the amount of deceased’s average weekly wages.

In short, the attorney-referee, Commission, and circuit court all held that Hugh Ross was “wholly dependent” upon the deceased employee within the terms of the statute, and incapable of self-support. There is no dispute about the latter factor. The question is whether there is substantial evidence to support the Commission’s finding of dependency.

After reviewing many cases on the subject, 9 Schneider, Workmen’s Compensation (3d Ed. 1950), p. 22, summarizes the cases on this point: “A total dependent is one who has no means of support and depends entirely upon the contribution from the employee for his support. While this broad definition of total dependency is usually accepted, it is not generally adhered to. If a claimant receives an insignificant income from others than the employee, or if' he receives some income from his own efforts, he may still be entitled to compensation as a total dependent. Some work and minor income does not preclude total dependency if substantially all of a mother’s income was received from her son.” Blue Diamond Coal Company v. Frazier, 229 Ky. 450, 17 S. W. 2d 406 (1929); Rasor v. Marshall Hall Grain Corporation, 224 Mo. App. 253, 25 S. W. 2d 506 (1930).

2 Larson, Workmen’s Compensation Law (1952), Section 63.13, p. 105, states: “Even total dependency is consistent with the receipt of some other income, if insubstantial or sporadic.

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Bluebook (online)
126 So. 2d 512, 240 Miss. 84, 1961 Miss. LEXIS 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-dependent-of-v-ross-miss-1961.