Thomas v. Raleigh Gas Co., 218 N.C. 429 (1940)

Nov. 7, 1940 · Supreme Court of North Carolina
218 N.C. 429


(Filed 7 November, 1940.)

1. Master and Servant § 55d—

While it may be admitted that in some instances the question of dependency may be a mixed question of fact and of law, where the facts admitted or found by the Commission upon competent evidence support the conclusion of the Commission in regard thereto, its award is binding on the Court.

3. Master and Servant § 43 — Evidence held to sustain finding that claimant was totally dependent upon deceased employee, notwithstanding small sums earned by claimant in casual employment.

The evidence tended to show that the mother of the deceased employee lived with him, that he paid the rent, bought groceries and supported her for a period of years, but that for two months prior to his death she did washing and nominal services for, and stayed with, an aged bedridden person and earned $5.75 per week thereby, which she deposited in a bank or used to buy small luxuries. Held: The fact that the mother earned small amounts of money in temporary and casual employment does not indicate any dependable source of income other than that she received from her son, and the conclusion of the Industrial Commission that she was totally dependent upon her son within the meaning of the Compensation Act, is sustained.

3. Master and Servant § 37—

The Workmen’s Compensation Act must be liberally construed and liberally applied.

Appeal by defendants from Harris, J., 29 June, 1940. From Wake.


Tbe 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 29 June, 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 *430employee at tbe time of bis accident resulting in bis death was $14.66; tbe deceased employee suffered an accident November 2, 1939, arising in tbe course of and out of bis employment, from wbicb injuries resulting from tbe accident be died, met bis death. Tbe sole question involved at tbe bearing was tbe party or parties to whom compensation should be paid on account of tbe death of tbe said deceased employee.”

Upon that question tbe pertinent evidence is substantially as follows: Tbe son, James Thomas, at tbe time of bis death was living in a bouse on East Martin Street in Raleigh, and tbe 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 tbe time of bis death. During tbe four years or three years and a half I did no work myself. I didn’t have any income during that time. Shortly before bis death I stayed with Mrs. Haywood, who lived at 200 East Edenton Street. She is an old lady in her eightieth year, tbe mother of Mr. Holt Haywood and Mr. Alt Haywood. She is an invalid. I bad 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 tbe income I have bad for tbe last three years. It was my duty to go there and sleep with her. My daughter-in-law prepared tbe meals and fixed them and all I bad to do was eat mine and carry Mrs. Haywood’s to her, to her bed. I bad not been able to do any work since tbe early spring of 1937 when I bad a stroke. I bad been under a doctor’s care from time to time since. I bad not done any work nor earned any income other than Mrs. Haywood paid me for tbe eight weeks, and I was totally dependent upon my son James for my livelihood. He supported me all tbe 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 tbe 75 cents. I started doing her laundry in 1937. I bad my nephew, Sam Arthur, with me and my son James. Out of tbe money James gave me and tbe money I earned tbe three of us lived. James paid all tbe bills and tbe rent. We paid fifteen dollars a month rent. He paid for all tbe groceries. I don’t know bow much that was. He bought tbe groceries and brought them to me. All I bad to do was tell him when I needed it and be brought it. I helped Mrs. Bailey who lived there nine years ago; haven’t been doing it during tbe 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 tbe laundry.

“I am fifty-eight years old. Since 1936, when my husband died, my son bad supported me entirely. I did not work during that period except for this lady for two months prior to my son’s death. During *431those 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 $600.00 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 T5c 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 $5.00 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 wage of $14.66), of $8.80 per week, for a period of 350 weeks, and, in addition thereto, ordered the defendants to pay the burial expenses, not to exceed $200.00, and all costs of the case.

Wm. H. Yarborough, Jr., and Robert C. Howison, Jr., for defendants, appellants.

Clem B. Holding for plaintiff, appellee.

*432Seaweix, 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.

*433In 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