The claimants, Mr. and Mrs. Bernstein, were the only witnesses in this case, and their testimony as to their dependency was vague and contradictory, and based to a great extent upon their mere conclusions; and it is well settled that, where the plaintiffs are the only witnesses in a case, their testimony should be construed most strongly against them; and they are not entitled to a recovery if that version of their testimony most *Page 699 unfavorable to them shows that the verdict should be against them. Turnmire v. Higgins, 176 Ga. 368 (1) (supra), and citations; Southern Ry. Co. v. Hobbs, 121 Ga. 428 (supra).
The undisputed testimony of the claimants showed that they possessed real estate of the value of $50,000, and had an annual income of $5250, exclusive of their son's annual contribution to them of $1800; that Mrs. Bernstein handled all of their income, including the son's contribution, as a common fund. And yet the hearing director stated: "The testimony of the father and mother will show that these contributions [of the son] were being used by the claimants for a part of their maintenance and subsistence . . and clearly shows that they actually needed the contributions to maintain their standard of living." The director further found: "The evidence of the father will show that although a good deal of money was invested in real estate holdings he only filed a return to the Federal Government for income taxes on $3,000." And yet Bernstein's own testimony disclosed that his income return should have been based on $5250. It is evident that the director erroneously construed the testimony of the plaintiffs most strongly in their favor; when, under the law, he should have construed it most strongly against them. And it is well settled that a finding in a compensation case based upon an erroneous theory of the law is reversible. Bibb Mfg. Co. v. Alford,51 Ga. App. 237 (3) (179 S.E. 912); Employers Liability Assur.Corp. v. Woodward, 53 Ga. App. 778 (3) (187 S.E. 142).
Furthermore, under the undisputed testimony of the claimants they are not in a class where dependency is conclusively presumed as a matter of law, and the burden is upon them to clearly establish their dependency by proof. Code, § 114-414; Barnett v. American Mutual Liability Ins. Co., 40 Ga. App. 800 (151 S.E. 537). In the instant case, while the claimants stated that they were dependent for support upon their son, their own testimony as to their wealth and substantial income contradicted that statement, and that statement, not being supported by thefacts of the case, was insufficient to show dependency. InGeorgia So. Fla. Ry. Co. v. Overstreet, 17 Ga. App. 629 (2) (supra), this court said: "It was error for the court, over timely and appropriate objection by defendant's counsel, to allow a witness for the plaintiff to testify that the money contributed by the deceased [to his mother] *Page 700 `was necessary for the support' of the plaintiff's family, and that the plaintiff `was dependent' for her support upon such contribution of the deceased. It was also error to allow another witness to testify that the plaintiff, in 1912, was `dependent, in whole or in part,' for her support and maintenance upon the deceased. This testimony was necessarily the conclusion of the witnesses, and answered a question which should have been determined by the jury, and not by the witnesses. The witness should have been allowed to give all the facts, if any, tending to show the dependency of the plaintiff for her support upon the deceased; but it was for the jury to say, from a consideration of those facts, whether or not she was so dependent."
Moreover, the claimants failed to state how much money it took to maintain their "standard of living," and there is nothing in the evidence to show their standard of living.
The director further stated: "The undisputed facts as testified to in the within claim were such that the director could make no other finding except that the mother and father were partially dependent upon their deceased son." That finding was evidently based upon the erroneous theory of law that the testimony of the claimants on the subject of their dependency should be construed most strongly in their favor; when, under the law and the facts of the case, it should have been construed most strongly against them.
Furthermore, it appears that the claimants had a $13,000 mortgage on a $50,000 building, one half of the building being owned by them and the other half by another son, Norman, and that claimants were reducing the mortgage by $1000 yearly, by paying $500, one half of that amount, from the common fund (which included their son's contribution) handled by Mrs. Bernstein, and that Bernstein's annual share of the rental of the above property was $2250; and there is a clear inference that the claimants were using that $2750 of their income for retiring the mortgage and for repairs and betterments of that income-producing property, which increased the value of the property. Certainly the amount so expended can not be held to be expended for their support. Can it be held that parents who own property of the value of $50,000, from which they derive an annual income of $5250 are "dependent" upon the $1800 contribution of their son? A deceased employee's *Page 701 parents who have sufficient means to supply present necessities according to their class and position in life, are not "dependents" within the Workmen's Compensation Law, a "dependent" being one who is not self-sustaining, and the mere fact that parents used certain earnings of deceased does not establish dependency. Serrano v. Cudahy Packing Co., 194 Iowa 689 (190 N.W.. 132).
In my opinion, the judgment should be reversed. I am authorized to state that PARKER, J., concurs in this dissent.