Ash v. Modern Sand & Gravel Co.

• Citation: 122 S.W.2d 45,234 Mo.App. 1195
• Parties: LEONARD ASH, JR., BY ROBERT M. McKAY, CURATOR, CLAIMANT, RESPONDENT, v. MODERN SAND & GRAVEL COMPANY, EMPLOYER, AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, INSURER, AND NANCY ASH, APPELLANTS
• Decision Date: 06 December 1938
• Court: Court of Appeal of Missouri (US)

122 S.W.2d 45

234 Mo.App. 1195

LEONARD ASH, JR., BY ROBERT M. McKAY, CURATOR, CLAIMANT, RESPONDENT, v. MODERN SAND & GRAVEL COMPANY, EMPLOYER, AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, INSURER, AND NANCY ASH, APPELLANTS

Court of Appeals of Missouri, St. Louis

December 6, 1938

Motion for rehearing overruled December 20, 1938.

Appeal from the Circuit Court of Franklin County.--Hon. Ransom A Bruer, Judge.

Judgment affirmed.

Luke & Cunliff for appellants Modern Sand & Gravel Co. and American Mutual Liability Insurance Company.

Hay & Flanagan and Robert W. Herr for appellant Nancy Ash.

(1) The Compensation Commission has the duty under the statutes to hear evidence, make findings of fact, and enter its award in all disputed cases. In cases wherein compensation is claimed by an alleged dependent, if the Commission finds the fact to be that the claimant was not a dependent its award must be a denial of compensation. Secs. 3319, 3338, 3339, 3340, 3341 R. S. of Mo., 1929; Glaze v. Hart, 36 S.W.2d 684. (2) The burden of proof is on the claimant throughout the case. The credibility of the witnesses and the weight of the evidence are matters solely for the consideration of the Commission. Noto v. Hemp & Co., 83 S.W.2d 136; Wright v. Penrod, Jurden & Clark, 88 S.W.2d 411; Wheat v. Whitney, 34 S.W.2d 158; Kemmerling v Karl Koch Erecting Co., 89 S.W.2d 674; Carnahan v. Kurn, 113 S.W.2d 824; Woehler v. City of St. Louis, 114 S.W.2d 985, 986; Cluck v. Abe, 40 S.W.2d 558. (3) The question of dependency in a compensation case is one of fact. There is no presumption of dependency where a minor child at the time of the accident was not living with the parent on whom the child is claiming to be dependent, but in such cases dependency is to be determined by the facts at the time of the injury. Sec. 3319 (d), R. S. of Mo., 1929; Glaze v. Hart, 225 Mo.App. 205, 36 S.W.2d 684; Gessler v. Liggett & Myers Tobacco Co., 54 S.W.2d 806; Gendron v. Dwight Chapin Co., 37 S.W.2d 486; Elihinger v. Wolf House Furnishing Co., 72 S.W.2d 141 (Mo. App.), 85 S.W.2d 11 (Mo.); Kemmerling v. Karl Koch Erecting Co., 89 S.W.2d 674. (4) The Workmen's Compensation Act vests the power to find the facts solely in the Commission and expressly withholds such power from the courts. The finding of the Workmen's Compensation Commission, if supported by competent evidence, is conclusive on the courts on appeal. All reasonable inferences must be drawn from the evidence to support the findings of the Commission, and the evidence must be viewed in the light most favorable to support the award. The Commission's findings have the force and effect of a special verdict of a jury. Leilich v. Chevrolet Motor Co., 40 S.W.2d 601, l. c. 603; Noto v. Hemp & Co., 83 S.W.2d 136; Kemmerling v. Karl Koch Erecting Co., 89 S.W.2d 674; Carnahan v. Kurn, 113 S.W.2d 824; Gessler v. Liggett & Myers Tobacco Co., 54 S.W.2d 806; Gendron v. Dwight Chapin Co., 37 S.W.2d 486.

Joseph T. Tate, Virginia B. Anding, James Booth and James L. Anding for respondent.

(1) It is error for the commission to reject competent material evidence offered by either party, and the case should be remanded for this reason alone. Wills v. Berberich's Delivery Co., 98 S.W.2d 569. (a) Evidence of acts or declarations of the father tending to show an admission of paternity is admissible. 7 C. J., par. 120, p. 991. (b) Reputation in the family will be received on the issue of pedigree. Beckham v. Nacke, 56 Mo. 546; 22 C. J. par. 239, p. 248. (c) The petition for divorce being sworn to under the law amounts to a solemn admission of the facts therein stated. R. S. Mo., 1929, sec. 1351; Turner v. Baker, 64 Mo. 218, l. c. 245; Wilcoxson v. Darr, 139 Mo. 660, l. c. 671; Insurance Co. v. Cravens, 69 Mo. 72, l. c. 77; Stevens v. Stevens, 170 Mo.App. 322, 156 S.W. 68. (d) Pleadings are admissible in evidence when they contain admissions against interest. Walser v. Wear, 141 Mo. 443; Dowzelot v. Rawlings, 58 Mo. 75, l. c. 77; Nicols Shepard Co. v. Jones, 32 Mo.App. 657; DeFord v. Johnson, 251 Mo. 244. (e) Judicial admissions are conclusive and cannot be withdrawn. Probst v. Basket & Box Co., 200 Mo.App. 568, l. c. 581. (f) The mother or father of a child born in wedlock is properly precluded by public policy from asserting its illegitimacy. 70 C. J., par. 176, p. 145; In re Barthels Estate, 177 N.Y.S. 565, l. c. 567. (g) A judgment or the finding of any facts which were in issue and necessarily decided are binding only on the parties to the cause. Womach v. St. Joseph, 201 Mo. 467. (2) All doubt as to the right of compensation should be resolved in favor of the claimant, and the act should receive a liberal construction. R. S. Mo., 1929, sec. 3374; Maddux v. Public Service Co., 100 S.W.2d 535; Keithley v. Stone & Webster Eng. Corp., 49 S.W.2d 297; Betz v. Columbia Tele. Co., 24 S.W.2d 224. (a) The intention of the legislature should not be frustrated either by a narrow construction of the law, or by a strained consideration of the evidence. Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232, l. c. 241; Sawtell v. Stern Bros. Co., 44 S.W.2d 264. (b) The general rule is that the credibility of the witnesses is for the determination of the Commission, nevertheless the rule does not go to the extent of permitting the Commission to completely ignore competent, substantial and undisputed testimony of witnesses who are not shown by the record to have been impeached, and base their findings upon conjecture, or their own mere opinion, unsupported by sufficient competent evidence. Stepaneck v. Mark Twain Hotel Co., 104 S.W.2d 761; Jackson v. Aetna Co., 59 S.W.2d 705; Allison v. Eyerman Const. Co., 43 S.W.2d 1063; Lamkins v. Range Corp., 42 S.W.2d 941. (c) When the facts are undisputed, then the court should determine the legal effect of the facts in evidence. Gilmore v. Ring Constr. Co., 61 S.W.2d 764; Keithley v. Stone & Webster Corp., 49 S.W.2d 296. (3) The claimant here was obviously totally dependent. He had no means of his own and was utterly without earning capacity. Such dependency was actual--that is, real and rested on the father. Kennedy v. Keller, 37 S.W.2d 452; Borgmeier v. Jasper, 67 S.W.2d 791; Cunningham v. Eng. Corp., 45 S.W.2d 899. (a) It satisfied the requirements of due proof of dependency to show that there was some reasonable probability that the deceased father's legal duty would thereafter have been fulfilled by him. Borgmeier v. Jasper, 67 S.W.2d 791; Kennedy v. Keller, 37 S.W.2d 452. (b) In a case involving a minor child, not living with his father upon whom he claimed to be dependent, the essential fact to be determined is legal liability for support. Phillips v. Air Reduction Sales Co., 85 S.W.2d 551, l. c. 556. (c) Deceased, as the father of claimant, was legally liable for his support during his minority. McClosky v. Trust Co., 202 Mo.App. 28; Worthington v. Worthington, 212 Mo.App. 216; Winner v. Schuchart, 202 Mo.App. 176; Dolvin v. Schimmel, 284 S.W. 811; Kershner v. Kershner, 202 Mo.App. 28; Robinson v. Robinson, 268 Mo. 709. (d) Where the decree of divorce is silent both as to custody and maintenance of a child of the marriage, the obligation of the father is exactly the same as it was before; that is he is obliged to support his offspring. Shannon v. Shannon, 97 Mo.App. 119; Viertel v. Viertel, 212 Mo. 576; Rankin v. Rankin, 83 Mo.App. 335; 19 C. J., p. 353. (e) Where other persons furnish such support they may sue and recover therefor from the father. Kelly v. Kelly, 11 S.W.2d 1107. (f) Until claimant reached the age of sixteen years, the deceased, as his father, could have been made criminally liable for failure to support him. R. S. Mo., 1929, sec. 4026. (g) Every child born in wedlock is presumed to be legitimate. Bower v. Graham, 285 Mo. 151; Gates v. Seifert, 157 Mo. 272; Busby v. Self, 284 Mo. 206. (h) Such presumption is one of the strongest known to the law, and the courts will not permit it to be overthrown unless there is no judicial escape from the conclusion. Nelson v. Jones, 245 Mo. 579; Maier v. Brock, 222 Mo. 74, l. c. 100; Jackson v. Phalen, 237 Mo. 142; Stripe v. Meffert, 287 Mo. 366; 7 C. J., par. 6, p. 940. (i) To overthrow the presumption the evidence must show that the husband could not have been the father of the child and was only present under the circumstances, affording clear and satisfactory proof that there was no sexual intercourse. Drake v. Milton Hospital, 266 Mo. 1. (4) The circuit court may reverse an award made by the Commission for insufficiency of evidence. R. S. Mo., 1929, sec. 3342; Keuser v. Ely & Walker Dry Goods Co., 48 S.W. 2d 167. (a) If the evidence is not legally sufficient, or if it be of a character lacking in sufficient probative force to sustain the award of the Commission, the award cannot stand, and it is the duty of the court to reverse it. Stepaneck v. Mark Twain Hotel Co., 104 S.W.2d 761; Maddux v. Kansas City Pub. Serv. Co., 100 S.W.2d 535; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 911. (b) Even though there may be some evidence to support the finding of the Commission, if it is not of such character that the court can declare it legally sufficient, it is the duty of the court to modify, reverse, remand for rehearing, or set aside the award. Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232, l. c. 239. (c) If the finding of the Commission is incomprehensible on any theory consistent with a proper regard for their duty to determine issues according to law and evidence, then it is the duty of the circuit court to set aside the finding, and the duty of the appellate court to affirm the action. Adams v. Lilbourn Grain Co., 48 S.W.2d 167. (5) The award in favor of Nancy Ash as a partial dependent of the deceased is not binding on the minor claimant. Smith v. Kiel, 115 S.W.2d...