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Wilken v. Shein''s Express Co.

Decided: April 20, 1944.

OTTO WILKEN ET AL., PETITIONERS-DEFENDANTS,
v.
SHEIN'S EXPRESS CO., RESPONDENT-PROSECUTOR



On writ of certiorari.

For the defendants, David Roskein and John A. Laird.

For the prosecutor, James J. Skeffington.

Before Justices Case, Donges and Porter.

Donges

The opinion of the court was delivered by

DONGES, J. This is a workmen's compensation case. The only question raised is as to dependency.

On September 22d, 1941, Gerald Wilken admittedly suffered a compensable injury, arising out of and in the course of his employment, from which he died on September 25th, 1941. He was then nearly nineteen years of age. Petition for compensation was filed by Otto Wilken and Luvenia Wilken, parents of decedent, with whom he lived. In the home at the time of Gerald's death were his parents, two brothers, Charles, then over sixteen years of age, Robert, then over twelve years of age, and a nephew, Harry Wilken, Jr., then about four years of age. At the time of his death he was earning $30 per week, all of which he gave to his mother for the maintenance of the home and the living of the occupants thereof. All of these matters are not controverted.

The Bureau determined that the mother, the brother Robert and the nephew Harry were partial dependents and entered judgment accordingly. The Essex Common Pleas affirmed the judgment as to the three persons mentioned and also held that the father was a partial dependent and entitled to compensation. The prosecutor challenges the judgment as to the father and nephew only.

As to the father's and nephew's status, it is provided by statute, R.S. 34:15-13, that:

"The term 'dependents' shall apply to and include any or all of the following who are dependent upon the deceased at the time of accident or death, namely: Husband, wife, parents, * * * nephew. * * * In determining the number of dependents, where the deceased employee was a minor, the number of persons dependent upon the deceased employee shall be determined in the same way as if the deceased employee were an adult, notwithstanding any rule of law as to the person entitled to a minor's wages."

From the uncontradicted testimony it appears that Otto Wilken gave his wife $30 each week from his wages and that Gerald gave his mother his entire wages, which, prior to the week of the accident when they were increased to $30 per week, amounted to "an average from $18 to $23 a week." Mrs. Wilken testified that she gave Gerald money each week from his earnings and expended certain sums for his clothing, food and up-keep, amounting in all to $14.43 per week. These figures are not challenged by prosecutor.

Unquestionably, the father benefited by the earnings of his son, but benefit is not the test. The proof is that the father earned from $50 to $60 per week; that, as stated, he gave his wife $30 each week and kept the balance. It seems clear that the father was not, in fact, dependent upon the decedent as required by our decisions. Miller v. Public Service Railway Co., 84 N.J.L. 174; Muzik v. Erie Railroad Co., 85 Id. 129; 86 Id. 695; Jackson v. Erie Railroad Co., 86 ...


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