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MARTIN v. FEDERAL SEC. AGENCY

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF PENNSYLVANIA


August 8, 1947

MARTIN et al.
v.
FEDERAL SECURITY AGENCY, SOCIAL SECURITY BOARD

The opinion of the court was delivered by: FOLLMER

This action is brought to review a final decision of the Social Security Board that the deceased wage earner, Carl P. Martin, was neither fully nor currently insured at the time of his death, that accordingly the claimant, Hannah Martin, is not entitled to widow's current insurance benefits under Section 202(e) of the Social Security Act, 42 U.S.C.A. § 402(e), and Social Security Regulations No. 3 (20 C.F.R.Cum.Supp. 403), Sections 403.201(a), 403.202(a) and 403.406(a)(1), nor to child's insurance benefits on behalf of Joseph H. Martin and Patricia L. Martin under Section 202(c) of the Social Security Act, 42 U.S.C.A. § 402(c), and Social Security Board Regulations No. 3, Sections 403.201(a), 403.202(a), and 403.404(a)(1)(ii).

Section 205(g) of the Act provides for judicial review of the record made before the Board, and grants the District Court power 'to enter upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision to the Board, with or without remanding the cause for a rehearing,' subject to the condition that 'findings of the Board as to any fact, if supported by substantial evidence, shall be conclusive, * * * .' 42 U.S.C.A. § 405(g).

 Both plaintiffs and defendant have presented motions for summary judgment under Federal Rules of Civil Procedure, rule 56, 28 U.S.C.A.following section 723c, each claiming to be entitled to prevail as a matter of law.

 The facts are undisputed. The deceased wage earner had been employed as a 'shipper' by Western Stevedoring Company, Erie, Pennsylvania, hereinafter referred to as 'Western,' for a total of thirty quarters from 1937 through 1944, amply sufficient for recovery under the Social Security Act provided jurisdiction over this entire period as to such employment was in the Social Security Board and not in the Railroad Retirement Board. *fn1"

 Western is a Delaware corporation organized for the purpose of performing stevedoring services. It had entered into several contracts with Pennsylvania Railroad Company, hereinafter referred to as 'Pennsylvania' (clearly a 'carrier' subject to part 1 of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq.), to render loading and unloading services. *fn2"

  The first question posed before the Social Security Board was whether Western because of its contractual relationship with Pennsylvania, was during the period covered in the suit directly or indirectly owned or controlled by Pennsylvania, and, if so, whether Western operated any equipment or facility, or performed any service in connection with the transportation of property by railroad. The Board found that the record would not justify a finding that Western was owned by Pennsylvania but did find that clearly Western did operate equipment and facilities and performed services for Pennsylvania in connection with the transportation of property by railroad and the receipt, elevation, transfer in transit, and storage of property transported by railroad, and thus limited the issue to whether Western was directly or indirectly controlled by Pennsylvania. I am in agreement with the conclusion of the Board that the sole issue here is that of control.

 Western operated grain elevators for Pennsylvania at Girard Point in the City of Philadelphia, Pennsylvania; Canton in the City of Baltimore, Maryland; Greenville in the City of Jersey City, New Jersey, and at Erie, Pennsylvania. In a general way the operation was as follows: The grain was brought to the elevator by railroad cars or arrived by water on vessels. When brought in by rail the cars were placed by Pennsylvania at the elevator. Pennsylvania furnished to the operator, Western, information with respect to the grade and kind of grain as well as the consignee or owner and the services to be performed in the handling and storage by Western. Having furnished this information, the services of Pennsylvania with respect to the grain ceased until or unless the grain was loaded outbound into cars for movement by rail. In short, the services performed by Western with respect to the grain were those generally performed by a stevedoring company. *fn3"

 With the exception of a few small tools, all of the equipment, including pier facilities and ships' gear, used by Western was the property of Pennsylvania, a universal practice on the entire eastern seaboard; actually, it has been the long established practice in stevedoring work for the ship or its owners, or the railroad company, to furnish loading and unloading facilities. *fn4" Western was separately owned and staffed. None of its stock was at any time covered by this suit, owned by Pennsylvania or any of its officers, and none of the principal officers of Western were, during such period, also officers of Pennsylvania or any other common carrier

 Records pertaining to receipts, shipments, and handlings of grain were made and kept by employees of Western. All of the work performed by Western was done solely by its employees. They were hired by and could only be discharged by Western. The manner of the rendition of their services was wholly under the supervision and direction of Western. They were paid wholly by Western and solely out of its funds. *fn5" To all intents and purposes they were employees of Western and of no one else

 Stevedoring services were performed by Western for Pennsylvania at the various points hereinafter referred to under separate contracts for each location. *fn6" All of the contracts referred to were offered in evidence excepting that covering the operations at Erie under date of December 1, 1926

 The original contracts were all similar to the one covering the operations at Canton in the City of Baltimore, Maryland, and dated May 14, 1927. This contract provided, inter alia, that Western agreed that it would operate such elevator, appurtenances and appliances in a prompt and workmanlike manner under the supervision and control of the General Agent and Superintendent of Pennsylvania, or its duly authorized agent. *fn7" It also provided for cancellation on ninety days notice in writing by either party and forthwith by Pennsylvania if and when, in the opinion of the General Agent and Superintendent, Western failed to perform any obligation cast upon it, or should fail to promptly and adequately maintain every part of the property therein included, or to operate said facilities in compliance with its requirements and should continue so to do for five days after notice in writing from the General Agent and Superintendent. *fn8"

  Various modifications were made to the original contracts affecting the operations in the different locations, which in my opinion were not controlling on the issue here involved, *fn9" until January 2, 1940, when all of the original and modifying contracts were cancelled and new contracts entered into, one for the operation of Pennsylvania's grain elevator at Girard Point in the City of Philadelphia, Pennsylvania; one for the operation of Pennsylvania's elevator and floating elevator at Canton in the City of Baltimore, Maryland; one for the operation of Pennsylvania's transfer elevator at Greenville in the City of Jersey City, New Jersey, and one for the operation of Pennsylvania's elevator at Erie, Pennsylvania. All of these contracts were, so far as material here, similar in their terms. All of them omitted the provisions of the contracts which they superseded giving the General Agent and Superintendent of Pennsylvania the right to supervise and control the work of Western, and giving Pennsylvania the right to terminate the agreement in case Western should, in the opinion of the said General Agent and Superintendent, fail to perform any provision of the agreement, and making the latter's decision with respect to the subject matter of the agreement or anything done or to be done in connection therewith conclusive upon Western. On the contrary, the new contracts provided that Western should be and remain an original, private and independent contractor thereunder, should furnish all labor and supervisory forces of every kind and description, should employ, pay from its own funds and discharge all persons engaged in the performance of the work to be done by Western thereunder. *fn10" As to the matter of termination, the new contracts . provided for arbitration of any unreconcilable controversy between the parties, *fn11" the right to either party to terminate at any time on ninety days written notice to the other party, and finally, in the event Western should for any reason whatever fail or refuse to perform any of the conditions and obligations cast upon it or to perform any of the work thereunder or any part thereof, then and in that event and because of the common carrier obligations of Pennsylvania the agreement might be forthwith terminated by Pennsylvania upon service upon Western of notice to that effect. *fn12"

  The Board held:

 'On the basis of substantially the same evidence we previously held *fn13" that the contractor was subject to the control of the railroad company prior to January 2, 1940 but that subsequent to that date it has not been subject to the control of the railroad company. However, upon a reconsideration of the entire matter we have concluded that our previous decision with respect to the period subsequent to January 1, 1940, is erroneous.' *fn14"

 The Board found that Western was at all times, indirectly if not directly, controlled by Pennsylvania regardless of the omission in the 1940 contracts of the supervision and control provisions of the earlier contracts; that while under the modification of the earlier contracts Pennsylvania unquestionably had the right to control the number of persons to be employed by Western and the rate of pay. *fn15" the fact as to whether or not such control was ever exercised by Pennsylvania was immaterial; that Pennsylvania was practically the sole source of income of Western; that the authority given by the 1940 contracts to Pennsylvania to terminate the contracts forthwith for cause as stated had the practical effect of enabling Pennsylvania to dominate Western, *fn16" and therefore concluded that Western had at all times been and still was controlled by Pennsylvania; that Western had since December 31, 1936, been an 'employer' within the meaning of the statutory definition and that therefore the services rendered by the wage earner for Western were excepted from employment by the provisions of Section 209(b)(9) of the Social Security Act, as amended; that the wage earner was neither fully nor currently insured at the time of his death; that the claimant was not entitled to widow's current insurance benefits and child's insurance benefits on behalf of Joseph H. Martin and Patricia L. Martin, for which application was made.

 Defendant takes the position that the question whether Western was controlled by Pennsylvania during the entire period in which the wage earner's services were performed, in such a way as to insure that Western's operations would be conducted in the interest of Pennsylvania, is a question of fact; that the Social Security Board had found that Western was so controlled; that in its opinion its conclusion is supported by substantial evidence; that accordingly the Board's finding that the services fell within the special system of social insurance for the railroad industry in conclusive upon the courts. It predicates this contention on Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), which provides, in part, that 'the findings of the Board as to any fact, if supported by substantial evidence, shall be conclusive, * * * .'

 I am fully appreciative of the fact that the expert judgment of the Social Security Board *fn17" and long administrative interpretation of the Revenue Code *fn18" is entitled to great weight. Certainly here, as evidenced by the Board's reversal of its position on the basic and fundamental question of control, the impressiveness of long and consistent administrative interpretation is lacking.

 As to the contention that the administrative decision of the Social Security Board should be treated as conclusive, the Supreme Court in Social Security Board v. Nierotko, supra, had this to say;

 ' * * * There is a suggestion that the administrative decision should be treated as conclusive, and reliance for that argument is placed upon National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S. Ct. 851, 860, 88 L. Ed. 1170, and Gray v. Powell, 314 U.S. 402, 411, 62 S. Ct. 326, 332, 86 L. Ed. 301. In the acts which were construed in the cases just cited, as in the Social Security Act, the administrators of those acts were given power to reach preliminary conclusions as to coverage in the application of the respective acts. Each act contains a standardized phrase that Board findings supported by substantial evidence shall be conclusive. The validity of regulations is specifically reserved for judicial determination by the Social Security Act Amendments of 1939, sec. 205(g).

 ' * * * The very fact that judicial review has been accorded, however, makes evident that such decisions are only conclusive as to properly supported findings of fact. * * * '

 In this case the fundamental facts are not in dispute. The Board originally found on this admitted factual situation no control, subsequently it reversed itself and on the same factual situation throughout the entire period involved found control. I am of the opinion that any construction of this basic jurisdictional question goes beyond the limits of administrative determination. An Administrative agency may not finally determine the scope of its statutory power, that is a judicial question. *fn19"

 Was Western at the time the services in question were performed an 'employer' within the meaning of Section 1532(a) of the Internal Revenue Code, which is a part of Chapter 9(B), otherwise known as the 'Carriers Taxing Act'? *fn20" If it was, services of its employees would be excluded by Section 17 of the Railroad Retirement Act of 1937 *fn21" and Section 209(b)(9) of the Social Security Act, as amended in 1939, *fn22" from employment as defined by that Act and consequently the wage earner was neither fully nor currently insured at the time of his death under the provisions of the Social Security Act.

 By the Carriers Taxing Act the term 'employer' is generally defined as a 'carrier' or any company which is directly or indirectly owned or controlled by a carrier. There is no question that Pennsylvania here is a carrier and consequently an employer within the terms of the Act. The same Act defines an 'employee' as #any person in the service of one or more employers for compensation,' and provides further that 'an individual is in the service of an employer * * * if he is subject to the continuing authority of the employer to supervise and direct the manner of rendition of his service, which service he renders for compensation.'

 Following the reasoning, and adopting in part the language of the United States Court of Claims in Pennsylvania Railroad Co., A Corporation, v. United States, 70 F.Supp. 595, involving a situation very similar to the instant case, there can be no question that the decedent here rendered services for compensation and that such services were an integral part of Pennsylvania's service as a common carrier of freight in transit. It is also true that if Pennsylvania had caused this service to be performed without the intervention of contracts of the character here involved, the individual performing those services would have been considered as an employee within the meaning of the Carriers Taxing Act. It is conceivable that this type of freight handling work, certainly in the first instance the responsibility of Pennsylvania, might have been handled directly by Pennsylvania. It elected not to so handle it. It rather chose to delegate the work to a concern with a personnel specially trained therein. There can be no doubt that the work of a stevedore does call for training and experience of a type separate and distinct from that of ordinary railroading. It is, therefore, probably for that reason that it seems to be the common practice of railroads to delegate this work to stevedoring companies. Pennsylvania here followed that practice and by contract did delegate that work to Western. The plaintiffs maintain that Western was an independent contractor and that the decedent employed by Western to perform these stevedoring services was an employee of Western and not an employee of Pennsylvania for the reason that he was not subject to the continuing authority of Pennsylvania to supervise and direct the manner of rendition of his services. I agree.

 To quote from the opinion last above referred to: *fn23"

 'The Statute says that an individual is an employee of a given employer if he is subject to the authority of the employer 'to supervise and direct the manner of rendition of his service.' A reasonable construction of this language is that the employer must have the right to supervise and direct the details of the work which the employee is called upon to perform. The most that can be said under the contracts with respect to authority for supervision by plaintiff is that the work performed by the Jersey Contracting Corporation shall be satisfactory to plaintiff, which means that the control reserved to plaintiff related to the results obtained and not as to the manner in which the services were performed in obtaining those results.'

 That, in my opinion, was the precise situation here.

 The question posed here is whether services performed by the wage earner for Western from 1937 to 1944 were covered employment under the Social Security Act, or were excluded as services performed as an employee under Section 1532 of the Internal Revenue Code by Section 209(b)(9) of the Social Security Act, 42 U.S.C.A. § 409(b)(9); it is therefore one primarily of statutory construction. Unquestionably there is here a case falling within some phase of the social legislative program.

 Social Security taxes were paid in this case during the entire period of the employment. The Social Security Board, in a prior case *fn24" involving Western and practically the same set of facts, held Western subsequent to January 2, 1940, to be an independent contractor and that the remuneration received by the wage earner after that date was 'wages' within the meaning of the Social Security Act, as amended. Subsequently thereto, and after the death of the wage earner in the instant case, the Board reversed its position and held that at all times Western had been and still is controlled by Pennsylvania. That therefore Western has since December 31, 1936, been an eMployer' within the meaning of the definition enunciated in Section 1532 of the Internal Revenue Code (Carrier Taxing Act), and that in consequence thereof, the services rendered by the wage earner for Western are excepted from employment by the provisions of Section 209(b) (9) of the Social Security Act, as amended. In thus reversing its position the Board was undoubtedly influenced by the Opinion of the General Counsel of the Railroad Retirement Board under the date of May 31, 1944, *fn25" in which he assumed jurisdiction over Western on the theory that Western in the operation of Pennsylvania's grain elevators was a common carrier by railroad subject to Part 1 of the Interstate Commerce Act and therefore an 'employer' within the meaning of the Railroad Retirement and Railroad Unemployment Insurance Acts and also that Western was controlled by Pennsylvania within the meaning of Section 1(a) of the Railroad Retirement and Railroad Insurance Acts, 45 U.S.C.A. § 228a(a), and accordingly was an 'employer' under the said acts as a company controlled by a 'carrier employer' and performing services and operating facilities in connection with railroad transportation.

 In endeavoring to fit a certain factual situation into its proper statutory framework one cannot be unmindful of the broad over-all objective of the particular statute or statutes involved. Here we have the impact of a group of so called social program statutes that should not be made the subject of technical juggling.

 At an early stage of the present proceedings, and appreciative of the fact that the determination of the question presented would affect the Railroad Retirement Board, the Collector of Internal Revenue and Western, as well as the plaintiffs and defendant, the Court suggested that such parties should be interpleaded before decision was rendered in order that they might be afforded opportunity to take such action as they might deem advisable under the circumstances. Both of the named agencies, in answer to the suggestion, contended in effect that, although desirable, to add the parties through the compulsion of process as distinguished from voluntary participation might not only be impossible but might represent a radical departure from the statutory scheme of Title II of the Social Security Act, 42 U.S.C.A. § 401 et seq., and also from the finality to which administrative determinations of the Railroad Retirement Board are entitled when they are challenged in the exclusive way permitted by Congress. Nor did the parties see fit to appear voluntarily. *fn26"

 In Allen v. Ocean Steamship Co. of Savannah, 5 Cir., 123 F.2d 469, 470, where the question involved was whether a steamship carrier owned by a railroad was subject to the provisions of the Carriers Taxing Act, 45 U.S.C.A. § 261-273, and where, as here, the administrative agencies given jurisdiction to determine the questions involved in the first instance had reversed themselves and given expression to conflicting views, the Court said:

 ' * * * When the act was first adopted and appellee's general counsel inquired of the Social Security Board, the Railroad Retirement Board and the Commissioner of Internal Revenue, whether in their opinion, the company fell under Title 8 of the Social Security Act, 42 U.S.C.A. § 1001 et seq., or under the Carriers Taxing Act, the Company was advised by the Chairman of the Railroad Retirement Board, that it was not an employer under the Carriers Taxing Act. A year later the Commissioner of Internal Revenue gave it, as his opinion, that plaintiff was under the act. Nearly a year later still, the general counsel of the Railroad Retirement Board, in a lengthy opinion, took the Commissioner's view while in an opinion equally lengthy, filed a little later, the general counsel of the Social Security Board disagreed with the Commissioner. It is thus quite apparent, with different agencies of the government in a contest with each other over which shall take jurisdiction over and administer upon a citizen, under a statute designed to advise him at once of his duties and his rights, that it is only in a Pickwickian sense that appellant declares that the terms of the invoked act quite plainly bring appellee under it. More it is a strong argument for giving the statute a broad common-sense construction rather than a narrow one, sounding in mere logomachy. * * * '

 It is significant that when by Act of July 31, 1946, Public Law 572, 60 Stat. 722, Congress amended the Railroad Retirement Acts, 45 U.S.C.A. § 228a et seq., the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 351 et seq., and Sub-chapter B of Chapter 9 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 1400 et seq., the coverage provisions of the then existing legislation, under which a company other than a carrier must be engaged in rail transportation operations and be directly or indirectly owned or controlled by a carrier or under common control therewith to be included in Railroad Retirement coverage and concurrently excluded from Social Security benefits, were left unchanged. The debate in the Senate on the amendment clearly indicates that a situation such as we have here was very much in the Congressional thought. As a matter of fact, the amendment as it originally passed the House did include a much broader and more comprehensive coverage under the Railroad Retirement Act. Such increased coverage provision was rejected by the Senate, and the amendment finally passed as above indicated. *fn27"

 Defendant argues that this is not significant, that the existing definition of 'employer' includes companies which are owned or controlled by a carrier by railroad and which performs services in connection with the transportation of passengers or property by railroad, and adverts to its original premise that the only issue here is whether Western is controlled by Pennsylvania.

 During the debate in the Senate on the amendment, the Jersey Contracting Corporation case, supra, *fn28" was specifically mentioned as being then in the Courts, undecided, 'and the rights of the employers in question to benefits under the Act have changed from a reality intended by the Act to a question mark.'

 The Court of Claims in its opinion in the Jersey case, supra, distinguished that case from cases like National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S. Ct. 851, 88 L. Ed. 1170, which involved newsboys who sold newspapers under supervision of the publisher but whose compensation was measured by the profit on the papers sold, and United States v. Vogue, Inc., 4 Cir., 145 F.2d 609, which concerned seamstresses working at home and paid on a piecework basis because in those cases not only did there exist authority for supervision and direction within the one held to be the employer, but also there was no intervening employer such as in the Jersey case. The Court then quotes from the opinion in Northern Pacific Railway Co. v. Reynolds, D.C., 68 F.Supp. 492, 494, as follows:

 ' * * * The question in both of those cases was whether the individuals involved were themselves independent contractors or 'employees'. That situation is not present here. The individuals affected here are employees of either the contractors or of the railroad and are within the coverage and protection of either the Social Security Act and the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., or they are governed by the special legislation enacted for railroad employees -- that is, the Railroad Retirement Act of 1937, 45 U.S.C.A. § 228a et seq., the Railway Labor Act, 45 U.S.C.A. § 151 et seq., the Carriers Taxing Act of 1937, 26 U.S.C.A.Int.Rev.Code § 1500 et seq., and the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 351 et seq. They cannot be within the scope of both schemes of legislation as they are mutually exclusive. * * * '

 In Bartels et al. v. Birmingham, Collector of Internal Revenue for the State of Iowa, 67 S. Ct. 1547, the petitioners, operators of public dance halls sued to recover taxes paid under the Social Security Act, Titles VIII and IX, 42 U.S.C.A. §§ 1001 et seq., 1101 et seq., and Int. Rev. Code, c. 9, subchapter A and C, 26 U.S.C.A.Int.Rev.Code, §§ 1400 et seq., 1600 et seq. Recovery depended on whether petitioners' arrangements for bands to play at the dance halls made the band leaders and other members of the bands employees of the petitioners or whether, despite the arrangements, the leaders were independent contractors and therefore themselves the employers of the other members. The employment was predicated on a contract which stated that the ballroom operator was the employer of the musicians and their leader and 'shall at all times have complete control of the services which the employees will render under the specifications of this contract.' The trial Court found that the leader exercised complete control over the orchestra; that he fixed the salaries of the musicians, paid them, and told them what and how to play; that he provided the sheet music and arrangements, the public address system, and the uniforms; that he employed and discharged the musicians; that he paid the agents' commissions, transportation and other expenses out of the sum received from the dance hall operators; that the operators furnished the piano but not the other instruments. It further held that the question of employment under the Act was one of fact, and that the contract was only one factor to be considered and concluded that the leader was an independent contractor employing the musicians, and awarded judgment in favor of plaintiff. The Circuit Court, 157 F.2d 295, reversed, holding that the test of the employment was the common law test of control, i.e., that one was an employer if he had the 'right' to direct what should be done and how it should be done. It concluded that the contract between the parties gave the ballroom operators the 'right' to control the musicians and the leader, whether or not the control was actually exercised (precisely the position of the defendant in the instant case.) The Supreme Court in reversing the judgments of the Circuit Court and affirming those of the District Court, 59 F.Supp. 84, stated:

 'The Government here relies entirely on the contract, conceding that otherwise the band leaders are independent contractors employing the musicians. * * * '

 'In United States v. Silk, supra, (67 S. Ct. 1463), we held that the relationship of employer-employee, which determines the liability for employment taxes under the Social Security Act was not to be determined solely by the idea of control which an alleged employer may or could exercise over the details of the service rendered to his business by the worker or workers. Obviously control is characteristically associated with the employer-employee relationship but in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service. In Silk, we pointed out that permanency of the relation, the skill required, the investment in the facilities for work and opportunities for profit or loss from the activities were also factors that should enter into judicial determination as to the coverage of the Social Security Act. It is the total situation that controls. * * * ' 67 S. Ct. 1549.

 The court concluded that the elements of employment marked the band leaders as the employers rather than the proprietors of the ballrooms.

 Treasury Regulation 90, promulgated under Title IX of the Social Security Act, Art. 205, provides, inter alia:

 ' * * * In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor, not an employee.'

 I therefore conclude that the facts in this case during the entire period covered by the employment of this wage earner unmistakenly indicate that Pennsylvania in its dealings with Western was only concerned with the results to be obtained; that for the period prior to January 1, 1940, or thereafter, not a solitary instance of the exercise of control over personnel or the manner of operation existed. *fn29" that at none of the times involved was Western controlled by Pennsylvania; that Western has not at any time since December 31, 1936, been an 'employer' within the meaning of Section 1532(a) of the Internal Revenue Code; that the wage earner was fully and currently insured at the time of his death and that the claimant is entitled to widow's current insurance benefits and child's insurance benefits on behalf of Joseph H. Martin and Patricia L. Martin, under the provisions of the Social Security Act

 Accordingly, defendant's motion for summary judgment is denied, plaintiffs' motion for summary judgment is granted, and the decision of the Social Security Board dated August 11, 1945, is reversed and the cause remanded, 42 U.S.C.A. § 405(g) with direction to the Board to compute the benefits to which plaintiffs are entitled under the Act on the basis of the total wages earned since January 1, 1937, to wit, the sum of $ 12,798.28, which sum shall be used in determining the amount of widow's current insurance benefits as provided in Section 202(e) of the Social Security Act, 42 U.S.C.A. § 402(e), payable to Hannah Martin, and child's insurance benefits as provided in Section 202(c) of the Social Security Act, 42 U.S.C.A. § 402(c), payable on behalf of Joseph H. Martin and Patricia L. Martin.

 Counsel for defendant will compute the benefits to which plaintiffs are entitled under the Act and submit same for approval to counsel for plaintiffs within thirty (30) days. Counsel for plaintiffs will thereupon draft and submit formal judgment in accordance therewith.


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