Where, as here, an employer and its insurance carrier are subject to the provisions of the Workmen's Compensation Law, and the deceased employee leaves surviving him a wife who has not voluntarily deserted or abandoned him at the time of the accident, such wife is conclusively presumed to be totally dependent upon her husband, and is eligible for death benefits under the act. Where, however, the wife waives her right to such benefits by failing to file a claim therefor within the period of limitations, and where a proper claim is filed within such period by the mother of the decedent, who was totally dependent upon him for support, the employer and insurance carrier cannot avoid their liability for the payment of death benefits by merely showing that there is a widow in life. 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.
DECIDED DECEMBER 5, 1949. REHEARING DENIED DECEMBER 19, 1949. Within one year from the death of her son, Floyd Zachery, the plaintiff in error, Lithonia Zachery, filed her claim for death benefits under the Workmen's Compensation Law, alleging that her son met his death as a result of injuries arising out of and in the course of his employment by M. F. M. Company, and that she was totally dependent upon her said son for support. From an award of a single director finding in her favor as the sole total dependent, which award was affirmed by the full board, Royal Indemnity Company as insurer and M. F. M. Company, the defendants in error here, appealed to the Superior Court of *Page 660 Cobb County, which reversed the judgment of the board awarding the claimant compensation, and from this judgment she appeals.
The evidence developed: that the deceased, Floyd Zachery, had sustained the injuries resulting in his death in the course of his employment by the defendant in error; that at the time of his death he had living a wife, who had separated from him in 1938 and had for several years past been self-supporting; that he had effected a bigamous marriage with another woman with whom he had been living in one side of his mother's house; and that the mother claimant occupied the other half of the house with another son; that his wife knew all these facts, had visited the house on several occasions, had been aware of her husband's death, and stated to the board that she had filed no claim in the case, because "I thought his mother was already done filed a claim and was already getting his money; getting money, you know, to take care of herself; I would rather she would get the money to take care of herself than for me to get it."
The evidence as to the total dependency of the mother upon her deceased son was in some conflict, but there was evidence from which the board might have determined that she was in fact totally dependent upon his earnings, and that he supported her. The judge of the superior court reversed the decision of the board upon the ground that the mother was not eligible for benefits under the Workmen's Compensation Law, due to the fact that the deceased had a wife living at the time of his death. The judgment complained of is as follows: "The foregoing case coming on for hearing, and after hearing arguments of counsel for the parties, it is considered, ordered and adjudged by the court that the award made by the director to the claimant, the mother of the deceased, be, and the same is hereby reversed. It appearing from the record that at the time of the injury and death of the employee that he had a living wife who, under Code § 114-414, `shall be conclusively presumed to be the next of kin wholly dependent for support upon the deceased employee,' and it not appearing from the record that she had voluntarily deserted or abandoned him at the time of the accident." At the time of the initial hearing before the Board of Workmen's Compensation, more than a year had elapsed since the death of the employee. No claim had been filed for death benefits other than that of the decedent's mother, and all other claims were then barred by the statute of limitations. It is apparent that, had the wife filed her claim within the statutory period, she would have been entitled to the death benefits allowable under the act; and had there been no wife, the mother would have been entitled to such benefits. The precise question is whether, in the absence of a claim by one primarily entitled to compensation under the law, the claim of a person secondarily entitled to benefits may be considered and adjudicated.
In New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682,689 (118 S.E. 786), it was held: "The compensation acts, though in derogation of the common law, being highly remedial in character, should be liberally and broadly construed to effect their beneficient purposes." Counsel for the plaintiffs in error contend that Code § 114-414, which states in part that, "if the deceased employee leaves a dependent surviving spouse . . and no dependent child or children, the full compensation shall be paid to such spouse," demands a finding that the classes of dependents enumerated in the act are mutually exclusive, and are determined as of the time of the accident. This sentence, however, when liberally and broadly construed to effect the beneficent purposes of the Workmen's Compensation Law, as required, means that full compensation shall be paid to such spouse provided a proper claim is interposed therefor. In like manner, that part of the same section which declares that the wife and other dependents listed therein are "conclusively presumed" to be "totally dependent" is intended to set a schedule of priorities among claimants who are otherwise eligible for benefits, but does not purport to award benefits to claimants who, for some other reason, are not eligible to participate in the distribution of benefits.
A widow who has not deserted or abandoned her husband is conclusively presumed totally dependent, and is therefore eligible for an award, so far as dependency is concerned. This right becomes fixed as of the time of the accident. SeeAtkinson v. Atkinson, 47 Ga. App. 345 (170 S.E. 527). Whether she is *Page 662 entitled to the award, however, depends, not alone upon status and dependency, but upon enforcement of the right in the manner provided by law, and includes, as a condition precedent, the filing of a claim within one year of the death. Code, § 114-305. Unless she does this, her claim is forever barred. On the other hand, the liability of the employer becomes fixed upon the death of the employee, and he is bound to pay the death benefits under the act, provided that it is made to appear that the death arose under circumstances held to be compensable, that he was subject to the provisions of the act, and that a valid claim was filed within the period of limitation on behalf of one entitled to compensation under the terms of the law. Although the exact question here has not previously arisen in this State, similar cases in other jurisdictions have been thus construed. Even these cases are not directly in point with the case at bar, but an examination of the annotations in 105 A.L.R. 1232 et seq., discloses that workmen's compensation acts throughout this country are generally construed liberally in favor of those classes of beneficiaries who are secondarily entitled to recover compensation, in the absence of a claim interposed in behalf of primary beneficiaries. In Allen v. St. Louis-San Francisco Ry. Co., 338 Mo. 395 (90 S.W.2d 1050, 105 A.L.R. 1222), it was held that an examination of the act reveals that, by its terms, it created a liability upon the part of the employer in instances where the death is caused by an injury accidentally received by such employee in the course of his employment, for a total death benefit to be ascertained by the commission in the manner and basis in said act set out.
In 71 Corpus Juris, Title, Workmen's Compensation, § 302, it is stated: "A statute conditioning the right of the parent to compensation for death of a child on the child's leaving no widow, widower or child of his own is construed to mean no widow, widower or child entitled to compensation under the act, so that the parent's right is not barred by the child's leaving a widow, provided the widow is not entitled under the act." We must, therefore, hold that, while the fact of dependency is determined as of the time of the accident, the fact of eligibility must be determined as of the date of hearing. For instance, both a mother and a widow may be dependent on the date of the accident. *Page 663 Both may file claims. In such circumstances, the widow at the time of the hearing is the one eligible for compensation. However, should the widow have died or remarried after she filed a claim and before such hearing, then and in that event the mother would be eligible for the compensation. The widow here at the time of the hearing, through her waiver of her rights, had become ineligible for compensation. The liability of the employer and carrier had become fixed at the time of the death of the employee to pay the compensation to the claimant who was next in line for benefits and who was otherwise eligible to receive the same, in this case the mother claimant.
The decisions relied on by counsel for the defendant in error under the homicide statutes are not applicable here, because the right to recover for wrongful death on a common-law action is in derogation of the common law, and it has been held that these statutes must be strictly construed. Smith v. Hatcher,102 Ga. 158 (29 S.E. 162); Marshall v. Macon Sash, Door Lumber Co., 103 Ga. 725 (30 S.E. 571); Georgia R. Bkg.Co. v. Spinks, 111 Ga. 571 (36 S.E. 855). On the other hand, as was stated in Atkinson v. Atkinson, supra, the Workmen's Compensation Law "embodies within itself a complete code of laws upon the subject. Porter v. Liberty Mutual Ins.Co., 46 Ga. App. 86 (166 S.E. 675). Thus complete within itself as to its own subject-matter, it excludes from consideration other statutes of the State with regard to the inheritance of a wife from her deceased husband, in determining whether or not the wife is entitled to share as a dependent in the award of compensation for his death as provided under the act."
In a case of this kind, a situation might arise where an employee might be killed in an accident under circumstances authorizing compensation under this law; where he would leave a widow, conclusively presumed to be totally dependent upon him, who would be entitled to the compensation if she should claim it; where such deceased might also leave a mother totally dependent upon him; and where the mother might immediately after his death file a claim for compensation, at which time the widow would not be barred. Where such circumstances are made to appear, it would be the duty of the Workmen's Compensation Board to defer action on the claim of the mother until *Page 664 after the widow became ineligible for compensation by being barred by the statute of limitations, or the board has conclusive evidence before it that she waived her right to workmen's compensation or otherwise becomes ineligible.
There being no claimant here other than the mother eligible to receive benefits under the provisions of Code § 114-414, and there being evidence from which the board was authorized to find that the mother was in fact totally dependent upon her deceased son, the judge of the superior court erred in reversing the award of the Board of Workmen's Compensation finding in favor of the mother claimant.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.