Ketchikan Lumber & Shingle Co. v. Bishop

• Decision Date: 23 January 1928
• Docket Number: No. 5199.,5199.
• Citation: 24 F.2d 63
• Parties: KETCHIKAN LUMBER & SHINGLE CO. v. BISHOP et al.
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.2d 63 (1928)

KETCHIKAN LUMBER & SHINGLE CO. v. BISHOP et al.

No. 5199.

Circuit Court of Appeals, Ninth Circuit.

January 23, 1928.

A. H. Ziegler, of Ketchikan, Alaska, for plaintiff in error.

George B. Grigsby, of Ketchikan, Alaska, and Robert W. Jennings, of San Francisco, Cal., for defendants in error.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

The son of the defendants in error came to his death as the result of an accident arising out of and in the course of his employment while in the service of the plaintiff in error. For the loss of his support the defendants in error, as plaintiffs in the court below, recovered each a judgment against the plaintiff in error for the sum of $1,560, under the provisions of the Workmen's Compensattion Act of Alaska (Session Laws 1923, c. 98) which provides: "(5) Where such deceased employee was survived by his or her father and mother, both dependent upon him or her for support at the time of his or her death, such father and mother, dependent upon him or her for support, shall be paid the sum of one thousand five hundred sixty dollars ($1,560.00) each." Section 1. The defendant, in its answer to the complaint, denied that at the time of the death of the employee his father or mother were dependent upon him for support, and for a further defense alleged that the injury which caused his death occurred on navigable waters of the Pacific Ocean.

Error is assigned to the denial of a request to instruct the jury that, unless the evidence showed that the plaintiffs were at the time of the death of their son actually and totally dependent upon his earnings for their livelihood, the verdict must be for the defendant. But it does not appear in the bill of exceptions that such request for an instruction was made, nor does the bill of exceptions include the instructions which were given, or show that exception was taken to any ruling on the trial, other than that which was taken on the denial of the defendant's motion for a nonsuit and a directed verdict made at the close of the plaintiffs' case and before the defendant had offered its evidence. There is no exception or assignment, therefore, which requires us to consider the defendant's contention that the evidence was insufficient to show that at the time of the death of their son the plaintiffs were dependent upon him for support.

We have looked into the testimony, however, sufficiently to ascertain that there was evidence to support the verdict; that there was undisputed testimony that from the time when the deceased was 16 years of age until the time of his death 8 years later he contributed substantially and regularly to the support of his father and mother, increasing his contributions as they grew older; that during the 4 years immediately prior to his death his...