dissenting. In my opinion the case of Zachery v. Royal Indem. Co., 80 Ga. App. 659 (56 SE2d 812), is controlling, and 'under the ruling therein made the trial court did not err in affirming the award of the full board granting compensation to the claimant.
It was stipulated by the parties that the only question for determination by the board was that of the dependency of the claimant. The board made a finding that such dependency existed, and there is sufficient evidence to support this finding. The board further found that no claim was filed by the “legal” widow of the deceased within the statutory period of one year, and therefore her claim for any benefits to which she might have been entitled would be barred. Under these conditions, where the widow has waived her right to benefits by failing to file a claim within the period of limitation, the claimant became a beneficiary secondarily entitled to recover by reason of dependency not related to kinship but established by facts and circumstances. Code § 114-414.
As was stated, in Zachery, supra, “Upon the death of the employee, the liability of the employer becomes fixed and he is bound to pay the death benefits under the Act. If the beneficiary primarily entitled thereto waives compensation, beneficiaries secondarily entitled thereto may recover.”
The judgment of the trial court affirming the award of compensation should be affirmed.