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BUSH v. GINGREY BROTHERS ET AL.

November 12, 1957

ETHEL BUSH, WIDOW OF HARRY BUSH, DECEASED, APPELLANT
v.
GINGREY BROTHERS, MELINDA BUSH, AND UNITED STATES FIDELITY AND GUARANTY COMPANY, RESPONDENTS.



The opinion of the court was delivered by: Taylor, Justice.

November 12, 1957.

This is a workmen's compensation case.

The deceased, Harry Bush, died as the result of an accident which arose out of and in the course of his employment with Gingrey Brothers, on March 4, 1956, leaving his widow, Ethel Bush. At the time of death, the deceased resided in the home of his mother, Melinda Bush. Both the widow and mother filed claim with the South Carolina Industrial Commission for benefits under the South Carolina Workmen's Compensation Act, Code 1952, § 72-1 et seq.

The Single Commissioner found that Ethel Bush was the widow and that Melinda Bush, the mother, was wholly dependent in fact upon the deceased employee within the contemplation of the South Carolina Workmen's Compensation Act and ordered the benefits equally divided between the two. Appellant, the widow, duly filed application for review by the Full Commission, the sole exception being:

"That the Commissioner erred in not awarding the entire amount of Death Benefits to the widow, Ethel Bush, the error being that the widow is conclusively presumed to be wholly dependent upon the deceased for support, and she being the sole beneficiary, should have been awarded the entire amount of the proceeds."

The Full Commission overruled the exception, affirmed the Opinion and award of the Single Commissioner, and adopted it in toto as its own. Thereafter, Appellant appealed to the Court of Common Pleas for Aiken County upon four exceptions, which were heard by the Honorable E.H. Henderson, Resident Judge of the Second Judicial Circuit, who overruled all exceptions, the first, heretofore quoted, as being without merit, and refused to consider the last three exceptions as not being properly before him in that they had not been presented to and passed upon by the Full Commission.

The question of whether or not under the South Carolina Workmen's Compensation Act the widow of a deceased employee takes to the exclusion of all others found to be wholly dependent in fact upon such deceased employee has not heretofore been before this Court. We have, therefore, examined the decisions of other Courts upon the subject, which, although not conclusive, are entitled to careful consideration. Salley v. Hamilton Veneer Company, 201 S.C. 473, 23 S.E.2d 385.

The Code of Laws of South Carolina 1952, provides:

"§ 72-161. Persons conclusively presumed wholly dependent.

"A widow, a widower or a child shall be conclusively presumed to be wholly dependent for support on a deceased employee."

"§ 72-162. Other cases of dependency.

"In all other cases questions of dependency, in whole or in part, shall be determined in accordance with the facts as the facts may be at the time of the accident; * * *"

"§ 72-163. Division when more than one dependent.

"If there is more than one person wholly dependent, the death benefit shall be divided among them and the persons partly dependent, if any, shall receive no part thereof. If there is no one wholly dependent and more than one person partially dependent, the death benefit shall be ...


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