Burley v. The State Social Security Comm. of Mo.
| Decision Date | 15 June 1942 |
| Docket Number | No. 20165.,20165. |
| Parties | GEORGE W. BURLEY, RESPONDENT, v. THE STATE SOCIAL SECURITY COMMISSION OF MISSOURI, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jackson County. — Hon. Albert A. Ridge, Judge.
REVERSED.
Roy McKittrick and B. Richards Creech for appellant.
(1) The evidence clearly shows that the claimant is not in need. Testimony of Miss Mildred Burley, George W. Burley and Mary Rose McKeever, A.R. 13, 17, 19. (2) Claimant has reasonable subsistence compatible with decency and health, as defined in Subsec. 6 of Sec. 9406, R.S. Mo. 1939. Secs. 9406, 9411, R.S. Mo., 1939; Howlett v. State Social Security Comm., 149 S.W. (2d) 806; Smith v. State Social Security Comm., 153 S.W. (2d) 741; Dunnavant v. State Social Security Comm., 150 S.W. (2d) 1103. (3) The testimony of Mary Rose McKeever was properly submitted for consideration by the Commission. Sec. 9410, R.S. Mo., 1939; Smith v. State Social Security Comm., 153 S.W. (2d) 741; Garrison v. State Social Security Comm., 157 S.W. 792; Hughes v. State Social Security Comm., 157 S.W. 223; Nichols v. State Social Security Comm., 156 S.W. (2d) 60; Lamkins v. Copper Clad Malleable Range Corp., 42 S.W. (2d) 941; Krestanik v. Chevrolet Motor Co., 70 S.W. (2d) 891; Hammack v. West Plains Lumber Co., 30 S.W. (2d) 650; Zickefoose v. Walker & Williams, 79 S.W. (2d) 511.
George W. Burley, claimant herein, applied for old age assistance, which was denied him by the State Social Security Commission. Claimant appealed to the circuit court where the judgment was that the Commission had not given claimant a fair trial and remanded the cause for further proceedings. From that judgment the Commission prosecutes this appeal.
At the time the hearing was held claimant was seventy-three years of age and physically unable to earn a livelihood. He was qualified in every respect to receive old age assistance unless he was then receiving, from a daughter, "income or resources ... sufficient to meet his needs for a reasonable subsistence compatible with decency and health." [Howlett v. Social Security Comm., 149 S.W. (2d) 806, 812.]
The determination of that question is primarily vested in the Commission; but if the Commission failed to give claimant a fair hearing or if its determination of the question adversely to the contention of claimant was not supported by substantial evidence then it became the duty of the circuit court to reverse the order of the Commission and to remand the matter to it for further consideration. [Howlett v. Social Security Comm., supra, 810.]
The evidence adduced before the Commission, the transcript of which constituted the circuit court record upon which that court acted, disclosed the following facts:
Claimant and his wife, together with claimant's grandchild, a girl six years of age, lived with claimant's unmarried daughter, Mildred. Mildred was employed and earned $35 per week, or about $151.50 per month, and she paid the entire living expenses of all members of the household. She so testified as a witness when called by the Commission. She testified that she received nothing from the father of her niece, claimant's granddaughter.
Claimant did not testify to any facts tending to prove that he was not then receiving sufficient food, shelter and medical attention commensurate with health and decency. He testified as follows:
Mary Rose McKeever, a social worker, testified that Mildred told her that she paid out the following sums, monthly: Food $48.00; clothing $20.00; rental $27.50; fuel and gas $10.00; electricity $5.00; household supplies, $1.50; personal health and medical supplies $10.50; transportation $5.00; insurance $27.65; lunches $8.50.
As to such testimony it would not have been admissible had it been objected to, because it was based on hearsay; but, since it was not objected to it was properly before the Commission.
Miss McKeever also testified that the family lived in a two story house, located in a good residential neighborhood of Kansas City, and that the house was "adequately and comfortably furnished." The latter testimony probably was the result of her conclusion, rather than testimony concerning primary facts; but, again, there was no objection as to its competency and it is, therefore, properly before the Commission.
This witness also testified to the effect that the six-year-old child's father told her that he was then, and had been, contributing $18 per month for the support of said child. This testimony was rank hearsay...
To continue reading
Request your trial
-
Ferrell v. Sikeston Coca-Cola Bottling Co.
... ... Sawtell, Mo.App., 286 S.W.2d 40, 42(1); Burley v. State Social Security Commission, 236 Mo.App. 930, 163 ... ...
-
Vosburg v. Smith, 7253
...326 Mo. 425, 31 S.W.2d 1010, 1012 (4), certiorari denied 283 U.S. 820, 51 S.Ct. 345, 75 L.Ed. 1435; Burley v. State Social Security Commission, 236 Mo.App. 930, 163 S.W.2d 95, 96(3); Cox v. Frank L. Schaab Stove & Furniture Co., Mo.App., 83 S.W.2d 211, 216(4); Ridenhour v. Oklahoma Contract......
-
Garrison v. Campbell '66' Exp., Inc., 7584
... ... Special Indemnity Fund of State v. Dickinson, 208 Okl. 39, 253 P.2d 161, 162(1); Special ... 1190, 3 S.W.2d 241, 244(8); Burley v. State Social Security Commission, 236 Mo.App. 930, 163 ... ...
-
Garrard v. State Dept. of Public Health and Welfare
...Health & Welfare, 365 Mo. 614, 622, 285 S.W.2d 634, 640(7), affirming Mo.App., 277 S.W.2d 331, 335(5); Burley v. State Social Security Com'n., 236 Mo.App. 930, 163 S.W.2d 95, 96(5)], excepting insofar as such rules may be modified and relaxed by permissible legislative enactments. See Sec. ......