The opinion
Dissenting Opinion by
Rhodes, J.:
I am of opinion the judgment of the court below should be reversed. In cases of this type the existence of children does not preclude a finding of total dependency upon a deceased child.
Norris v. Phila. Life Insurance Co. et al.,
137 Pa. Superior Ct. 293, 296 , 9 A. 2d 159 . Dependency is to be determined by the condition existing at the time of the accident; and the existence of dependency and its extent are primarily questions of fact, and are for the compensation authorities to determine.
The majority opinion relies on
Mattis et ux. v. Arcadia Coal Co. et al.,
148 Pa. Superior Ct. 462 , 25 A. 2d 610 . It is to be noted that in the
Mattis
case the children were within the state. In the present case three of the children, Chester, Mary, and Helen were not within the jurisdiction of this Commonwealth; and Anthony was not employed and was not contributing to the support of his mother when Walter was killed. See
Commonwealth v. Morrisey,
150 Pa. Superior Ct. 202 , 27 A. 2d 446 .
The only reason I find for interfering with the award is a possible inconsistency in the findings of fact. Consequently, at most the record should be returned to the board for further hearing and determination.
The referee and board found (7th finding of fact) “that the earnings of the decedent [Walter] for the year prior to his death were $934.50 and that he gave all his earnings to his mother [claimant] for the sup
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port of the household”; and (9th finding of fact) “that the claimant ...... was totally dependent upon him [Walter] at the time of his death.”
In the 8th finding of fact it is stated that the household expenses were in excess of the earnings of the deceased; that they “are estimated and not supported
by
itemized accounts”; and that a store bill of claimant in the amount of $200 was unpaid. There is no finding that anyone contributed toward the expenses of the household above the contribution of deceased. The finding and the testimony indicate the contrary. The so-called estimates of the expenses of the household were brought out on cross-examination of claimant, who testified through an interpreter. Her testimony does not warrant a finding that the household expenses were actually $1,794 per year. But she definitely did testify that deceased was the only member of the family who contributed in any way toward the maintenance of the household.
1
We should not attempt to take over the prerogatives of the compensation authorities. That is what the court below and the majority of this court have done. I would reverse the judgment and remit the record to the board for the purpose previously indicated.
1
Although it is not material, Anthony was employed for a short period after Walter’s death, and then entered the army.