Thomas v. Raleigh Gas Co.

11 S.E.2d 297, 218 N.C. 429, 1940 N.C. LEXIS 4

• Court: Supreme Court of North Carolina
• Decided: November 7, 1940
• Status: Published

Opinion

Seaweix, J.

Tbe Industrial Commission took tbe view tbat tbe casual and temporary employment of tbe plaintiff for a short time at a wage of $5.00 a week for two months during tbe period of tbe four preceding years, did not take her out of tbe category of entire dependency upon her deceased son.

We may concede tbat dependency may in some instances become a mixed question of fact and law. Re: Carroll (1917), 65 Ind. App., 148, 116 N. E., 844. But where tbe factual element is admitted, or has been determined on competent evidence consistently with its counterpart of legal definition, tbat is tbe end of tbe trail. Walker v. Wilkins, 212 N. C., 627, 194 S. E., 89; Winslow v. Conference Assn., 211 N. C., 571, 191 S. E., 403; Carlton v. Bernhardt-Seagle Co., 210 N. C., 655, 188 S. E., 77; Swink v. Asbestos Co., 210 N. C., 303, 186 S. E., 258; Tomlinson v. Norwood, 208 N. C., 716, 182 S. E., 659; Reed v. Lavender Bros., 206 N. C., 898, 172 S. E., 877. We are satisfied tbat tbe conclusion reached by tbe Industrial Commission and tbe lower reviewing court, both as to fact and law, is in accord with tbe best considered cases dealing with similar situations, and with tbe spirit and purpose of tbe "Workmen’s Compensation Act.

Tbe determining facts in this case, including tbe condition of tbe plaintiff and tbe fact of ber actual support by ber deceased son, tbe small amount of money received by ber during a period of years, and its deposit in tbe bank, cannot be beld to affect ber status as being wholly dependent upon ber deceased son. Tbe receipt of tbe small amount involved, temporary and casual in character, does not indicate any dependable source of income other than tbat received from ber son.

In tbis respect tbe Court feels tbat there is sound reason and justice in tbe view taken of similar situations in tbe decisions noted :

“Total dependency exists where tbe dependent subsists entirely on tbe earnings of tbe workman. But in applying tbis rule courts have not deprived claimants of tbe rights of total dependents, when otherwise entitled thereto, on account of temporary gratuitous services rendered them by others, or on account of occasional financial assistance received from other sources, or on account of other minor considerations or benefits which do not substantially modify or change tbe general rule as above stated. Stone Co. v. Phillips, 65 Ind. App., 189, 116 N. E., 850; Williams case, 122 Me., 477, 120 A., 620; Coal Co. v. Frazier, 229 Ky., 450, 17 S. W. (2d), 406; State ex rel. v. Dist. Court, 128 Minn., 338, 151 N. W., 123; McKesson Co. v. Industrial Com., 212 Wis., 507, 250 N. W., 396.” Maryland Casualty Co. v. Campbell, 34 Ga. App., 311, 129 S. E., 447. Adopted in Garbutt v. State et al., 287 Mich., 396, 283 N. W., 624.

In Blue Diamond Coal Co. v. Frazier et al., 17 S. W. (2d), 406, the principle is thus expressed: “One of the purposes of the Act is to provide for the dependents of the workman injured in the course of his. employment, for their right to sue and obtain compensation for his death, under the constitutional provision, is taken away. The' statute,, therefore, should be liberally construed in their favor. A person may be wholly dependent on an employee, although he may have some slight savings of his own, or some other slight property, or be able to make something by his own services.”

Any award made to an employee whose injury arises out of and in the course of his employment, or to a dependent in case of his death, is measured by a hard fact rule — his earnings for a definite period of time. In view of the inconsiderable sum received by the plaintiff, and the uncertainty of further income, it would be unjust to make a purely speculative deduction from such an award.

It is a familiar rule that the terms of the Workmen’s Compensation Act must be liberally construed and liberally applied. Wick v. Gunn, 66 Okla., 316, 169 P., 1087, 4 A. L. R., 107; Cole v. Minick, 123 Neb., 871, 244 N. W., 785, 787. In Blue Diamond Coal Co. v. Frazier, supra, it will be noted that this rule is applied to the same factual situation we have in the case at bar. That rule has become standard in reviewing compensation cases in this State. Smith v. Light Co., 198 N. C., 614, 620, 152 S. E., 805; Johnson v. Hosiery Co., 199 N. C., 38, 153 S. E., 591; Reeves v. Parker-Graham-Sexton, Inc., 199 N. C., 236, 154 S. E., 66.

The judgment is

Affirmed.