On appeal from a judgment of the Supreme Court, whose opinion is printed in 15 N.J. Mis. R. 307.
For the petitioners-appellants, Isadore Rabinowitz and Thomas G. Tuso.
For the defendant-respondent, Franklin J. Marryott.
The opinion of the court was delivered by
DONGES, J. This is a compensation case in which the decedent met his death while driving a truck in the State of New York, apparently by reason of the truck going overboard into a stream and the decedent being drowned. The accident occurred on July 8th, 1935. The testimony was that at the time of his death decedent was earning $30 a week for four days' work, and it was computed that compensation should be upon the basis of $37.50 for a week's work. Decedent left a wife and daughter, having been married April 9th, 1920, and the daughter, Lorraine Comparri, having been born of the marriage on December 24th, 1922.
Two petitions for compensation were filed, one by the widow, Elsie Comparri, for herself and the daughter, and another by the mother of decedent, Rosalia Comparri, who alleged she was a dependent. The compensation bureau found that the wife was not a dependent and that the facts did not warrant a finding that she was either a partial or total dependent. It was further found that decedent's mother was a partial dependent, and that the daughter Lorraine was a full dependent. There was an appeal by the employer from so much of the award as gave compensation to the daughter on the basis of full dependency. This amounted to $12.50 a week.
From the record it appears that on August 3d, 1927, the decedent deserted his wife and family. At the December, 1928, term of court he was indicted by the Cumberland county grand jury for desertion, and on January 18th, 1929, he pleaded guilty to the indictment for desertion and the court made an order requiring him to pay for the support of his infant daughter the sum of $5 per week. She was then six years and three months old. No order was made for the wife's support. From January 18th, 1929, when the order was made, to June 1st, 1934, the decedent was in arrears in the sum of $370. On June 1st, 1934, the court made an order requiring the decedent to pay $5 a week for the support of the daughter and the further sum of $2 per week on the arrearage. Decedent died on July 8th, 1935, without having caught up on the arrears and without making regular payments on the order of June 1st, 1934.
The respondent insists that the daughter is not a full dependent within the contemplation of the statute because she was not a member of a household maintained by the decedent.
The compensation bureau found as a fact that the daughter was a full dependent, which finding was approved by the Common Pleas Court. On certiorari, the Supreme Court reversed, holding that the daughter was a partial dependent.
By the terms of the statute, Pamph. L. 1928, p. 286, it is provided that "dependency shall be conclusively presumed as
to decedent's widow and natural children under sixteen years of age who were actually a part of the decedent's household at the time of his death, * * *. It is further provided that the foregoing schedule applies only to persons wholly dependent, and that in the case of persons only partially dependent, except in the case of the widow and children, who were actually a part of the decedent's household at the time of his death, the compensation shall be such proportion of the scheduled ...