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Smith v. Miele

New Jersey Superior Court, Appellate Division


Decided: December 29, 1948.

CLARA SMITH, PLAINTIFF-APPELLANT,
v.
ANDREW H. MIELE AND FRANK MIELE, T/A MIELE BROTHERS, DEFENDANTS-RESPONDENTS

On appeal from the Essex County Court.

McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D.

Colie

[1 NJSuper Page 159]

This workmen's compensation case comes up on certiorari to the Essex County Court of Common Pleas, now the Essex County Court. In the compensation bureau, plaintiff had an award based upon a finding of partial dependency. The county court reversed and dismissed the petition on the ground that any finding of the amount of decedent's contributions "would have to rest on speculation, rather than credible evidence. The burden of proof has therefore not been sustained by the petitioner."

We have studied the record bearing in mind that the deputy commissioner had the advantage of personal observation and consequently was in a better position to judge of credibility than an appellate tribunal and we find the facts to be that on July 9, 1945, Thomas Jackson, 19, was killed in an accident arising out of and in the course of his employment by Andrew H. Miele and Frank Miele, trading as Miele Brothers. For the week preceding the date of his death, he was paid $33.36. He left surviving his mother, Clara Smith; his grandmother, Emily Jackson and a half sister, Louise Wilkes. He lived in the household with Emily Jackson and Louise Wilkes and the undisputed testimony is that he gave to his mother, Clara Smith, $30. each week, of which she retained $10. toward her support and turned over $20. to the grandmother and the half sister toward their support. It follows therefrom that Clara Smith, Emily Jackson and Louise Wilkes were partial dependents within the meaning of R.S. 34:15-13 (g) and accordingly the judgment of the county court is reversed and the award entered in the Workmen's Compensation Bureau is affirmed with costs.

19481229


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