Brooks v. Bethlehem Steel Co.

Markell, J., delivered the opinion of the Court. These are appeals from a judgment which reversed as to two claimants on the jury’s verdict, and affirmed as to two others on judgment n.o.v., a decision of the State Industrial Accident Commission. Herman Brooks was injured on October 11, 1948, while working for Bethlehem Steel Company, and died a few days later. He left surviving an illegitimate child, Irene Johnson, eleven years old, a legitimate child, Joyce, seven years old, and his parents.

He had killed his wife when Joyce was eight months old, and had been convicted of murder and sentenced to eighteen years imprisonment. On February 5, 1948 he was paroled, and for about two months worked and lived at the Sheppard-Pratt Hospital. In April he went to work in the Montebello tunnel and there made an average of $65 a week. He was laid off about the first of September and was out of work for several weeks.

He then went to work for Bethlehem Steel Company but died before he received any wages. After he left the Sheppard-Pratt he lived with his parents. His sister, her husband and their four children ³² also lived there. His mother testified that he gave her and his father each ten dollars a week while he was working at the tunnel and “would also pay for the milk and would buy groceries and he helped me with the furniture bill and telephone bill”; it was he only who contributed to her support in the spring and summer of 1948.

Irene lived with her mother, who is married. While he was in the penitentiary he gave her mother “a couple of checks”, while he was at the Sheppard-Pratt he once gave her ten dollars and once fifteen dollars. After he went to work in the Montebello tunnel the mother would get five dollars every week from him; if he missed a week he would make it up. The mother testified that, “In addition to the money Brooks bought her shoes, skirt, and a blouse”; she does not know definitely how often these were bought but once in a while; she got no money from him after he left the tunnel company; she had to add to what he gave her to support the child; five dollars a week would not support the child; she did not get more than five dollars a week from him; the last money she got from him was the first part of September.

Irene testified that her father sometimes gave her quarters or dollars, gave her “money for a trip one time”, bought her “a pair of shoes and a skirt and something else”; sometimes he gave her dollars and quarters for herself to go to the movies with and buy ice cream or get herself something; sometimes he took her to the movies. Joyce lived with her maternal grandmother. The father gave five dollars a week in substantially the same circumstances as he did for Irene. The grandmother testified that five dollars a week did not support the child.

Joyce testified that he would sometimes give her a quarter and sometimes a dollar. Claims were filed for both children and both parents. The commission found that all four were partially dependent. On appeal (by whom does not appear) the jury found that both children were wholly dependent ³³ and the parents were not dependent at all.

The employer had asked a directed verdict that the children were not wholly dependent; the court granted a judgment n.o.v. to this effect, thus affirming the commission’s decision. As to the parents, the commission’s decision was reversed on the jury’s verdict. All four claimants have appealed. The only questions here presented are the legal sufficiency of the evidence to show that the children were wholly dependent (which they claim) and to overcome the presumption in favor of the commission’s decision that the parents were partially dependent (which they claim).

Section 35 of the act, before it was amended in 1947, ** contained an exclusive enumeration of dependents, among them “wife” and “child or children”, and declared that a