Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CARTER v. VECCHIONE ET AL. (06/11/57)

June 11, 1957

CARTER
v.
VECCHIONE ET AL., APPELLANTS.



Appeal, No. 14, Oct. T., 1957, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1953, No. 5584, in case of Panthel Carter, widow of Sterling Carter, deceased, v. Salvatore Vecchione, and Pennsylvania Threshermen's and Farmer's Mutual Casualty Insurance Company, insurance carrier defendant. Judgment reversed.

COUNSEL

James B. Doak, with him LaBrum & Doak, for appellants.

Alexander F. Barbieri, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 183 Pa. Super. Page 597]

OPINION BY ERVIN, J.

In this Workmen's Compensation case the only question is whether or not the widow of Sterling Carter was actually dependent upon him and receiving from him a substantial portion of her support at the time of his death. The referee found: "At the time of his death neither the widow nor the children were living with the decedent although the decedent was contributing to the support of the children. The widow, Panthel Carter was employed and self-supporting, receiving no assistance from the decedent." The board affirmed these findings and found that "claimant was independent of decedent" and "While his contributions were necessary for the support of his children, the earnings of his wife rendered her self-sufficient." The record discloses that the husband's death was caused by an accident while working for the employer on April 24, 1952. The claimant and her husband had been separated since 1942, the three children of the marriage then being 6, 7 and 10 years of age. Claimant testified that her husband gave her $15.00 to $20.00 a week for the support of herself and three children. On crossexamination she testified that the money she got from her husband was used to pay for the children's schooling and that she added to whatever money her husband gave her for this purpose. She further testified that some time after the separation she sent the three children

[ 183 Pa. Super. Page 598]

    to Virginia to live with her mother and that they attended a private school there. She paid her mother $50.00 a month. After the separation from her husband claimant started to work at the Quartermaster Depot in Philadelphia and had worked there about 10 years at the time of his death, during which time her salary had increased from $20.00 a week to $65.00 a week, with a take-home pay of $56.00. The decedent did not pay any money to claimant whatsoever in 1952. In April 1952 the decedent worked 11 days for James J. Morrissey and was paid $142.80. He had also, early in April, worked three days for Salvatore Vecchione, his employer at the time of his death, and had earned $30.00. No part of these earnings had been paid over to the wife for any purpose. During vacations the children lived with the claimant. Two of the children were living with her at the time of the husband's death. She lived in an apartment and paid $35 a month rent. The husband was a laborer and she guessed that "he earned about $40.00 a week." At the time of the husband's death, claimant's son was in the Army and had given his mother as a dependent "to get a certain amount of money each month." The referee ordered the defendant to pay to the mother, as guardian for her daughter Dolores, "dependent minor, compensation at the rate of $10.50 per week beginning May 2, 1952 and continuing until August 16, 1954 when Dolores becomes 16 years of age," together with interest on the deferred payments. He also ordered the payment of $250.00 to the undertaker toward the burial expenses.

On appeal from the board's decision the lower court reversed and entered a decree in favor of the widow. To do so the court reversed the board in its findings of fact and substituted its own therefor. To reach this result the court, in effect, found that the wife was actually

[ 183 Pa. Super. Page 599]

    dependent upon her husband and that she was receiving from him at the time of his death a substantial portion of her support. The court said: "We hold that the referee and the Board, by allocating to the children alone the entire amount which Mr. Carter gave Mrs. Carter, made an inference without proper evidence in the record to support such an inference, and that the referee and the Board disregarded competent testimony." What we said in Motley v. Braun Construction Co., 169 Pa. Superior Ct. 141, 145, 82 A.2d 581, is particularly applicable to this case: "In any event, an issue of fact having been presented, if any inferences were to be drawn pertinent to that issue, from the testimony or from subordinate findings of fact, it was the function of the fact-finding body to draw them. Icenhour v. Freedom Oil Works Co., supra. It was clearly beyond the province of the court below to substitute its own judgment as to what inferences should have been made in this matter of fact. Rather, its responsibility in reviewing the administrative decision adverse to claimant lay in determining whether the facts found were consistent with the conclusions of law and with each other, and whether they were supported by competent evidence. Schrock v. Stonycreek Coal Co., 152 Pa. Superior Ct. 599, 33 A.2d 522." See also Dandy v. Century House & Window Cleaning Co., 179 Pa. Superior Ct. 365, 367, 115 A.2d 871. We have carefully reviewed the record and are of the opinion that the findings of fact are ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.