Atwood v. Connecticut Light & Power Co.

Wheeler, C. J. Six of the nine assignments of error are the court’s denial of the several paragraphs of the defendant’s motion to correct the finding, and of its motion that the evidence taken before the commissioner be certified by him and made a part of the record. These motions should have been presented to the commissioner for his action, and in the event of their denial, error based thereon should have been incorporated in the reasons of appeal filed in the Superior Court. The practice in compensation cases is comparatively new, and for this reason, had the corrections asked for affected the decision upon the appeal to this court, we should have been disposed in this instance to have considered them on their merits. In order to have uniformity in our practice as to this class of motions, we purpose stating with some fullness the proper practice upon a motion to correct before the commissioner, and upon appeal from his decision in the Superior Court, and thence on appeal to this court. In Swanson v. Latham, 92 Conn. 87, 90, 101 Atl. *673 492, we said: “The right of the trial court to correct the finding of the commissioner is similar to that exercised by us upon a proper appeal over the finding of a trial court.” We foreshadowed our purpose to make the practice conform, in substance, to that established on appeals from the Superior Court to this court. One who appeals from a finding and award of a compensation commissioner, should make his application to correct the finding to the commissioner within a reasonable time after the filing of his appeal, and unless this time be otherwise fixed by rule or statute, or extended for cause by the commissioner, such reasonable time will be within two weeks after the filing of the appeal. The appellant must file with the commissioner, with his motion, or at the earliest time he can procure the transcript, such portions of the evidence as are relevant and material to the several corrections asked for. If the appellee claims that additional evidence is relevant and material to the corrections asked for, he should, within one week after appellant has filed his transcript, or at the earliest time he can procure the transcript, file with the commissioner such additional evidence. The commissioner should within a reasonable time file with the Superior Court such motions, together with his decision thereon; if said motions be denied in whole or part, and such denial be made ground of appeal, he should, within a reasonable time thereafter, file with the Superior Court the transcript of evidence filed with him by appellant and by the appellee, together with such additional evidence as may have been taken before him in the form of testimony, or taken by him in other ways, and deemed by him relevant and material to these corrections. The appeal should assign as error the finding of, or refusal to find, facts as contained in the motion to correct presented to the commissioner. *674 The Superior Court determines the errors so assigned, upon the evidence certified to it by the commissioner. It cannot consider other evidence in passing upon such errors. It cannot try ultimate issues of fact by independent examination of the evidence. Except for the limited purpose of correcting a finding, it cannot examine the evidence, and for this limited purpose it examines such evidence as the commissioner has certified to it. But, when it appears necessary to protect substantial rights of a party, not represented by counsel, the Superior Court may order a transcript of the evidence. Rainey v. Tunnel Coal Co., 93 Conn. 90, 93, 105 Atl. 333. Upon the refusal of the court to correct the finding as asked for, the appellant may incorporate in his assignment of errors to this court, such refusal, specifying in separate assignments the several refusals to correct. We determine these assignments upon the evidence certified to the Superior Court and made a part of the record on the appeal to this court. In case appellee desires the finding of the commissioner, or of the Superior Court, to be corrected, he shall proceed under a like practice. The additional questions involved in the remaining assignments of error, are whether the plaintiff was a dependent of the decedent; and if so, whether the amount of the weekly award made, and the duration fixed for it, were justified by the Compensation Act. Since we must answer the first question in the negative, there is no occasion to determine the validity and duration of the award. “The question of dependency is by the Act made one of fact. And unless the commissioner has applied an illegal standard or found a fact without evidence, we cannot review his finding.” McDonald v. Great Atlantic & Pacific Tea Co., 95 Conn. 160, 165, 111 Atl. 65, *675 68. “The test is, whether the contributions were relied upon by the dependent for his or her means of living, judging this by the class and position in life of the dependent.” Powers v. Hotel Bond Co., 89 Conn. 143, 152, 93 Atl. 245. The contributions relied upon must neccessarily be, as we pointed out in Blanton v. Wheeler & Howes Co., 91 Conn. 226, 230, 99 Atl. 494, such as were relied upon for the living expenses; and these living expenses are to be measured by those which are necessary and proper for the class and station in life of the plaintiff. We further pointed out that proof that contributions were used for the living expenses, would not create a condition of dependency, unless the fact further appeared that these contributions were required for the living expenses and had been relied upon by the dependent for his living expenses, reckoning these by those which were reasonably necessary and proper for one in his class and station in life. “The Compensation Act,” we said, on page 231, “does not contemplate support for any save the dependent, and one cannot be said to be a dependent who has sufficient means at hand for supplying present necessities, judging these according to the class and position in life of the alleged dependent.” The fact that the earnings were turned into a family fund and used as one of the sources of support of the family of the deceased, does not prove that they were relied upon by the claimant for his living expenses. McDonald v. Great Atlantic & Pacific Tea Co., 95 Conn. 160, 166, 111 Atl. 65, 68. Again, in treating of this subject, we said that “no one, not belonging to the enumerated classes of persons conclusively presumed to be dependent, is entitled to be regarded as a dependent or partial dependent, whose financial resources, at his command or within his power to command by the exercise of such efforts on his part as he reasonably ought to exert in view of the existing con *676 ditions, are sufficient to sustain himself and family in a manner befitting his class and position in life without being supplemented by the outside assistance which has been received or some measure of it.” Gherardi v. Connecticut Co., 92 Conn. 454, 458, 103 Atl. 668. The facts of record show that the plaintiff received of the earnings of the decedent in the period from July 14th, 1919, to November 19th, 1919, upward of $350, and had applied none of it to the living expenses of himself or family. All of this sum had been used for the purpose of making a payment on the purchase price of the house which he had purchased on July 14th, 1919, and toward this purchase price the plaintiff had paid $900 up to the time of the injury to decedent. The plaintiff had not in fact relied on these earnings for the living expenses of himself and family. And the reason is apparent: the plaintiff was in good health, with steady employment, and earning upward of $2,000 a year as a locomotive engineer; he did not require these earnings of his son for his own or his family living expenses, and had applied these entire earnings toward this purchase price. The finding is not susceptible of other interpretation than that the plaintiff did have sufficient means at hand for supplying the present necessities of himself and family, judging these according to his class and position in life. Blanton v. Wheeler & Howes Co., 91 Conn. 226, 230, 99 Atl. 494. The commissioner held that upon the facts found these earnings were used for the support of the plaintiff and his family and relied upon for their support, measuring that according to his station in life. The subordinate facts combat both propositions. The commissioner argues that “reasonable and modest savings constitute an item of living expenses,” and that earnings of the decedent applied to the. purchase *677 price of this house were no more than a reasonable and modest saving for this family. The case is not that to which the commissioner likens it. If the earnings had, in fact, been used in the family support, and at the same time the plaintiff father had made a weekly or monthly saving of an amount relatively small compared to his income, or carried a life insurance for a moderate amount, or made payments of a moderate amount toward the pinchase of a home, we should not be disposed to hold that the money saved, or that paid for life insurance, or toward the purchase price for a home, necessarily came in fact from the earnings of the decedent, and hence that the plaintiff could not be a partial dependent of decedent. The family protection involved in such saving or such expenditure, if reasonable, according to the station in life of the plaintiff, will be held to be legitimate family expenditures. They are not the savings for investment, but rather the provision of thrift for the family protection against the contingencies of death, ill health, lessening earning power, or lessening work to be had. But when the savings go beyond these reasonable bounds, and, as in this case, are at the rate of about one half the total earnings of the plaintiff, they must be held to be payments made toward an investment, and not to be the payment of living expenses. Our Compensation Act was never intended to make one a dependent of a decedent whose earnings had in the lifetime of the decedent been handed to the plaintiff and used by him, not for living expenses but to make a substantial investment. Between the modest savings of thrift, or family self-sacrifice, for family protection, and savings for investment, the line, although incapable of definition, ought not to be difficult in a given case to find. Mulraney v. Brooklyn Rapid Transit Co., 190 N. Y. App. Div. 774, 180 N. Y. Supp. 654. *678 The subordinate facts of the finding are inconsistent with its conclusion that these earnings were relied upon by the plaintiff for* the support of himself and family and were proper expenditures for such purpose, and do not support the finding of dependency. McDonald v. Great Atlantic & Pacific Tea Co., 95 Conn. 160, 111 Atl. 65, 68. There is error, the judgment is set aside and the cause remanded with direction to the Superior Court to render judgment sustaining the appeal from the commissioner and vacating his award and directing him to deny the claim. In this opinion the other judges concurred.