Cole v. Hendry Corp.

J. Seaborn Holt, Associate Justice. This is a Workmen’s Compensation case. The primary and decisive question presented is one of fact, — that of dependency. On a hearing before a single commissioner appellant, Mrs. Lela Cole, was, on March 12,1954, awarded $2.50 per week for a period of 450 weeks. On an appeal by Mrs. Cole to the full Commission the findings and the order of the single commissioner was reversed, Mrs. Cole’s claim of dependency was disallowed and dismissed. On appeal to the Circuit Court the action of the full Commission was affirmed. This appeal followed. Claude Stevenson (the deceased) was born in 1920. While in the employ of appellee, Hendry Corporation, and during the course of his employment, he lost his life by drowning on September 4, 1951. He had no children. M. F. Stevenson was his father and appellant was his mother. They were divorced and his mother (now Mrs. Cole) was awarded Claude’s custody. Mrs. Cole married her present husband in 1947. Claude married Ruth Mayes in 1942 and they were divorced in 1947. They were reconciled on the day the divorce was granted and lived together for some time. On November 10, 1947 Claude went through a marriage ceremony with Frankie Powell in Bentonville but lived with her only a few months when he left her and went back to his mother in El Dorado where he worked intermittently. The record discloses that Claude worked six months in 1950 for which he was paid $841.83. His total earnings for 1951 were approximately $500.00, which covered a period of nine months. The findings and conclusions of the full Commission, which we have concluded were supported by substantial testimony, were: “There remains only for consideration the question as to whether or not Lela Cole was partially dependent upon the deceased and if she was, to what extent. We are of the opinion that she was not a dependent, even partially, within the meaning of the Act. She is married and has been for several years and is supported by her husband. She told one story at the hearing of this case on October 5, 1951, and later changed her testimony. Deceased was not regularly employed and was apparently out of work a considerable part of the time and could not have regularly contributed to the support of anyone. It seems clear that claimant (deceased) was from time to time supported by other persons.” On appeal to this court of Workmen’s Compensation cases, our rule is well established that we must affirm the action of the commission if we find any substantial evidence to support it. As recently as December 22,1958, in Ship v. Tanner, 229 Ark. 815, 318 S. W. 2d 821, we summarized the scope of review as follows: “Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here ele novo, we are, therefore, not concerned with where the weight of the evidence may lie. When we find any substantial evidence to support the findings of the commission, we must affirm. — Findings of fact by the Workmen’s Compensation Commission are given the same verity as attach to the verdict of a jury and this applies on appeal to the circuit court as well as to the Supreme Court from the judgment of the circuit court ... On appeal, the Supreme Court must view testimony in its strongest light in favor of the commission’s findings . . . Where the commission acting upon sufficient evidence sustains or rejects an award, such findings will not be disturbed on appeal. —. . . there is no prima facie presumption that the claim comes within the provisions of the law, (Workmen’s Compensation Act),” Duke v. Pekin Wood Products Company, 223 Ark. 182, 264 S. W. 2d 834. “The question of dependency is one of fact in the determination of which all the circumstances of the particular case are to be considered,” Nolen v. Wortz Biscuit Company, 210 Ark. 446, 196 S. W. 2d 899. “The testimony of an interested party will not be regarded as undisputed in determining the legal sufficiency of his evidence, and in weighing his testimony, his conduct and the attendant circumstances may be considered,”. Meyer v. Seismograph Service Corporation, 209 Ark. 168, 189 S. W. 2d 794. After a careful review of the evidence presented, and without attempting to detail it here, we have concluded, as indicated above, that there was substantial evidence upon which to base the Commission’s findings, and accordingly, we affirm. MoFaddin and Johnson, JJ., dissent.