Young v. Waters Construction Co.

WADDILL, Commissioner. Harold Young was fatally injured while at work for the Waters Construction Company. They had both accepted the provisions of the Workmen’s Compensation Act. KRS, Chapter 342. Charles W. Young, the decedent’s brother, filed an, application for compensation claiming that he was totally dependent upon Harold. KRS 342.070(2). The compensation board found that claimant was 50 per cent dependent upon his deceased brother, and awarded compensation benefits accordingly. KRS 342.070(3) (a). The award was affirmed by the circuit court. On this appeal Charles is urging a reversal of the judgment on the ground that the proof conclusively established his claim of “total dependency” under the provisions of KRS 342.070(2). The record discloses that Charles is 23 years of age and since 1949, when he received permanent injuries in a truck accident, has been an invalid and totally dependent upon others for support. The lay evidence and the medical proof established his complete incapacity to perform labor. It was also shown that he has no property, income, or means of support. The decedent, Harold Young, was 19 years of age and unmarried at the time of his death. For several years prior to his death, Harold had held several different jobs, but it appears that his employment with appellee was his first job of any consequence. [889] William Young, the father of Charles and Harold, testified that he lived in Eliza-bethtown and was employed as a janitor. He stated that his entire salary was consumed in the support of himself, his wife, and his infant children. He related in considerable detail the various sums of money which Harold had 'expended for the support of Charles. He conceded'that Charles and Harold frequently stayed at his home, but said that when Harold began working for the appellee company, Harold-paid him $10 a week for Charles’ support. He testified further to the effect-that several weeks prior to Harold’s death, 'Charles would frequently stay in Louisville, where Harold was then working, and 'Harold' furnished Charles with the necessities of life. His testimony concerning the fact that Harold had become the breadwinner for Charles is supported to some extent by the testimony of other witnesses. Under KRS 342.075, Charles is not within the class of persons presumed to be wholly dependent upon his deceased brother. Hence, the burden was upon Charles to establish the degree of his dependency upon Harold. Columbus Mining Co. v. Pelfrey, Ky., 237 S.W.2d 847. Therefore, the question of dependency, or the degree of dependency, constituted the sole issue in this case. This type of question is one of fact to be determined by the compensation board and its finding in respect thereto is conclusive when supported by evidence having probative value. Ford, Bacon & Davis v. Paxton, 304 Ky. 292, 200 S.W.2d 738; Calvin v. Palmer Asbestos & Rubber Corp., 302 Ky. 139, 194 S.W.2d 162; Moles v. Three Points Coal Co., 227 Ky. 374, 13 S.W.2d 253. Since the compensation board found that appellant was 50 per cent dependent upon his deceased brother, and inasmuch as its finding was based upon probative facts, we are constrained to affirm the judgment of the circuit court which upheld the award of the board. Ford, Bacon & Davis v. Paxton, 304 Ky. 292, 200 S.W.2d 738; Calvin v. Palmer Asbestos & Rubber Corp., 302 Ky. 139, 194 S.W.2d 162; Jones v. Driver, 282 Ky. 82, 137 S.W.2d 729; Nelson’s Adm’x v. Kitchen Lumber Co., 276 Ky. 3, 122 S.W.2d 1037; Cornish’s Guardian v. Lexington Utilities Co., 270 Ky. 62, 109 S.W.2d 10; Coleman Mining Co. v. Wicks, 213 Ky. 134, 280 S.W. 936; Robinson v. Eastern Gulf Oil Co., 196 Ky. 385, 244 S.W. 914; and, Veach’s Adm’rs v. Louisville & I. R. Co., 190 Ky. 678, 228 S.W. 35. Judgment affirmed.