Borgmeier v. Jasper
| Decision Date | 06 February 1934 |
| Docket Number | No. 22727.,22727. |
| Citation | 67 S.W.2d 791 |
| Parties | BORGMEIER v. JASPER et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; James F. Green, Judge.
"Not to be published in State Reports."
Proceeding by Nita Josephine Thelma Borgmeier, a minor, by her guardian, Elizabeth B. Lohse, to recover compensation under the Workmen's Compensation Act for the death of her father, employee, opposed by Ben H. Jasper, employer, and the Indemnity Insurance Company of North America, insurer. From a judgment affirming an award of compensation by the Workmen's Compensation Commission, the employer and insurer appeal.
Affirmed.
Holland R. Polak and A. A. Alexander, both of St. Louis, for appellants.
Bartley & Mayfield, of St. Louis, for respondent.
BENNICK, Commissioner.
This is a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929, Mo. St. Ann. §§ 3299-3376, pp. 8229-8294), the appeal being by the employer and insurer from the judgment of the circuit court of the city of St. Louis, affirming an award of the commission in the claimant's favor.
The claimant is the daughter of the deceased employee; and it is conceded that the only question at issue on this appeal is that of her status as a dependent within the contemplation of the act.
The total amount of the award was the sum of $5,916, representing a death benefit of $5,766, payable at the rate of $19.22 a week for 300 weeks, plus an allowance for burial expenses in the sum of $150. The employer and insurer were credited with a payment of $392.86 made to the employee personally on account of his injury; and the amount still in dispute is the sum of $5,523.14, which is the balance due the claimant if she is entitled to maintain her claim at all.
The claimant was born on September 6, 1916, at a time when her parents were living apart. When claimant was about one year old, her parents became reconciled and lived together for some seven or eight months, when a second and final separation occurred. However, there was no divorce, the marital status remaining intact until some time in 1922, when claimant's mother died.
The evidence shows without contradiction that following the separation claimant never lived under the same roof with her father, and that she was supported entirely by her mother and her relatives, save for contributions made by her father in the period prior to 1924, but of an amount so insignificant as to have been of no practical consequence. Under the most favorable view of the evidence, the total of all his contributions would not have exceeded $10 or $12. The father died in 1931, when claimant was fifteen years of age; and it likewise appears without dispute that at the time of his death she had no independent means of her own, nor had she ever earned anything on her own account.
These are the facts about as the full commission found them, and upon such basis the full commission determined that claimant was a total dependent, and entitled to the total death benefit as provided by law. In other words, the full commission put its decision upon the ground that the claimant had had no independent means of support, and that the deceased had at all times been legally liable for her support. The referee had previously made a further finding which was not specifically incorporated in the finding of the full commission, this being a finding that the deceased had always expressed himself as willing to support the claimant, the same evidencing an intent on his part to support her. Such finding was founded upon positive and undisputed testimony from several witnesses to the effect that the deceased had been heard to say that he intended to contribute to his child's support, or that, if he knew where she was to be found, he would do something for her.
The applicable statute is section 3319, R. S. 1929 (Mo. St. Ann. § 3319, p. 8254), which deals with the question of dependency under the act. Suffice it to say that the statute puts...
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