{
  "id": 1664706,
  "name": "ROACH MANUFACTURING COMPANY et al v. Willadean COLE",
  "name_abbreviation": "Roach Manufacturing Co. v. Cole",
  "decision_date": "1979-06-11",
  "docket_number": "79-50",
  "first_page": "908",
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  "citations": [
    {
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      "cite": "265 Ark. 908"
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    {
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      "cite": "582 S.W.2d 268"
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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      "category": "reporters:state",
      "reporter": "Ark.",
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      "reporter": "Ark.",
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      "year": 1946,
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      "category": "reporters:state",
      "reporter": "Ark.",
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        8718209
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      "year": 1968,
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    {
      "cite": "257 Ark. 837",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8724162
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      "year": 1975,
      "opinion_index": 0,
      "case_paths": [
        "/ark/257/0837-01"
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    {
      "cite": "310 S.W. 2d 803",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        8724857,
        8724988
      ],
      "year": 1958,
      "opinion_index": 0,
      "case_paths": [
        "/ark/228/0856-01",
        "/ark/228/0876-01"
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    {
      "cite": "228 Ark. 876",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8724988
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      "year": 1958,
      "opinion_index": 0,
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        "/ark/228/0876-01"
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  "last_updated": "2023-07-14T18:31:48.026206+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "ROACH MANUFACTURING COMPANY et al v. Willadean COLE"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nIn 1976 the General Assembly amended the workers\u2019 compensation law to provide that death benefits are payable to persons who were \u201cactually\u201d dependent upon the deceased employee. Ark. Stat. Ann. \u00a7 81-1315 (c) (Repl. 1976). In the present case the Commission, construing the amendatory language, held that the appellee, as the widow of her deceased husband, Glenn Cole, was not entitled to death benefits for herself, because she was not actually dependent upon him at the time of his death, but she was entitled to recover benefits for the couple\u2019s l()-year-old daughter, Sherri Lyn Cole, because she was actually dependent upon her father at the time of his death. The circuit court affirmed the Commission\u2019s decision. An appeal and cross appeal bring both points to this court for review.\nThe basic facts are not in dispute. Glenn and Willadean Cole were married in 1965. Their daughter was born in 1966. In June, 1975, while the family was living in Rector, Arkansas, Glenn left his wife and child and moved to Memphis, Tennessee, where he married another woman without having divorced his wife. Willadean knew that her husband was in Memphis, but she supported herself and her daughter as best she could and made no attempt to obtain anything from her husband. Glenn was accidentally killed in the course of his employment on May 18, 1976.\nThe statute defines a widow as \u201cthe decedent\u2019s legal wife, living with or dependent for support upon him at the time of his death.\u201d It defines widower as \u201cthe decedent\u2019s legal husband who, at the time of her death, was living with and dependent upon her for support and was incapacitated to support himself.\u201d It defines a child as \u201ca natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child, \u2018Child\u2019 shall not include married children, unless wholly dependent upon the deceased.\u201d \u00a7 81-1302.\nBefore the 1976 amendment to the statute death benefits were payable to persons who were \u201cwholly dependent\u201d upon the deceased employee. In quoting the 1976 amendment we have italicized the words that were added by the General Assembly:\nSubject to the limitations as set out in Section 10 of this Act, compensation for death of an employee shall be paid to those persons who were wholly and actually dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference:\nFirst. To the widow if there is no child, thirty-five percent (35%), and such compensation shall be paid until her death or remarriage. Provided, however, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.\nTo the widower, if there is no child, thirty-five percent (35%), and such compensation shall be paid during the continuance of his incapacity or until remarriage. Provided, however, the widower shall establish, in fact, some dependency upon the deceased employee before he will be. entitled to benefits as provided herein.\nSecond. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen percent (15%) on account of each child.\nThird. To one child, if there is no widow or widower, fifty percent (50%). If more than one child, and there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (35%) to the children as a class, to be divided equally among them. [\u00a7 81-1315 (c).]\nAs we have said, the statute formerly referred to persons who were \u201cwholly dependent\u201d upon the decedent, but we did not construe those words literally. The decisive case, which has been followed, is Chicago Mill & Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958). There the husband, at the time of his death, was not contributing to the support of his wife or children. The Commission disallowed the widow\u2019s claim, on the ground that she was not a dependent, but allowed the claim of the children. We held that both the widow and the children were \u201cwholly dependent,\u201d upon this reasoning:\nIt would be possible to construe this provision of the Act as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the Legislature used the term \u201cwholly dependent\u201d in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children.\nWe assume \u2014 under our settled law we must assume \u2014 that the legislature, in deciding to amend the statute, knew the meaning that we had attributed to \u201cwholly dependent.\u201d Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975). It unavoidably follows that the addition of the word \u201cactually\u201d was intended to change what amounted to a conclusive presumption of dependency under our prior cases. It follows at least that when, as here, the widow and child were not living with the employee at the time of his death, there must be some showing of actual dependency.\nWe have said, where there is no presumption of dependency, that dependency is a fact question to be determined in the light of surrounding circumstances. Smith v. Farm Service Cooperative, 244 Ark. 119, 424 S.W. 2d 147 (1968). The fact of dependency is to be determined in the light of prior events and not to be controlled by an unusual temporary situation. Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S.W. 2d 899 (1946). Larson summarizes the rule applicable under statutes requiring actual dependency: \u201cProof of bare legal obligation to support, unaccompanied by either actual support or reasonable expectation of support, is ordinarily not enough to satisfy the requirement of actual dependency.\u201d Larson, Workmen\u2019s Compensation Law, \u00a7 63 (1976).\nIt was of course the responsibility of the Commission to decide the two issues of fact, as to the wife and as to the child. We find that both the Commission\u2019s conclusions are supported by substantial evidence. The question, as we have frequently said, is whether the proof supports the finding that was made, not whether it would have supported the contrary conclusion. Mosley v. El Dorado Sch. Dist., 254 Ark. 326, 493 S.W. 2d 427 (1973).\nWith respect to the wife, she elected to attempt to support herself and made no effort during her husband\u2019s 11-month absence preceding his death to enforce whatever legal right to support she may have had. Thus the Commission could find that she failed, in the language of the amended statute, to \u201cestablish in fact some dependency\u201d upon her husband at the time of his death. On the other hand, the Commission could also find, with respect to a 10-year-old child who was being supported by her mother, that the same lapse of 11 months without legal action on the mother\u2019s part did not demonstrate, in Larson\u2019s language, that there was no longer any \u201creasonable expectation of support\u201d on the part of the father. The child was not able to act for herself. Her necessary expenses would naturally increase as she grew older, with the concurrent possibility that her mother would not be able to maintain the child in \u201cher accustomed mode of living,\u201d as we expressed it in Smith v. Farm Service Cooperative, supra. Thus a reasonable expectation of future support could be found.\nAffirmed.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.",
      "Gardner & Steinsiek, for appellee."
    ],
    "corrections": "",
    "head_matter": "ROACH MANUFACTURING COMPANY et al v. Willadean COLE\n79-50\n582 S.W. 2d 268\nOpinion delivered June 11, 1979\n(In Banc)\nLaser, Sharp, Haley, Young & Huckabay, P.A., for appellants.\nGardner & Steinsiek, for appellee."
  },
  "file_name": "0908-01",
  "first_page_order": 932,
  "last_page_order": 937
}