Caldwell v. J. A. Kreis & Sons

• Decision Date: 07 June 1932
• Parties: MATTIE LEE BROWN CALDWELL AND FRANK BOMAR, CLAIMANTS, APPELLANTS, v. J. A. KREIS & SONS, EMPLOYER, AND HARTFORD ACCIDENT & INDEMNITY COMPANY, INSURER, RESPONDENTS
• Court: Missouri Court of Appeals

50 S.W.2d 725

227 Mo.App. 120

MATTIE LEE BROWN CALDWELL AND FRANK BOMAR, CLAIMANTS, APPELLANTS, v. J. A. KREIS & SONS, EMPLOYER, AND HARTFORD ACCIDENT & INDEMNITY COMPANY, INSURER, RESPONDENTS

Court of Appeals of Missouri, St. Louis

June 7, 1932

Appeal from the Circuit Court of Franklin County.--Hon. R. A Breuer, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Simon Fisher and Robert L. Aronson for appellant.

(1) The referee and commission erred in rendering their award on a point not placed in issue by the claim or the answer, and in going outside the issues. (2) Appellant was entitled to the benefit of the conclusive presumption of dependency, created by statute, in favor of a wife for whose support her husband is legally liable. Sec. 3319 (d), R. S. 1929. (a) This statute includes wives separated from their husbands under circumstances where the liability to support continues. Cotter v. Valentine Coal Co., 14 S.W.2d 660; Woods v. American Coal & Ice Co., 25 S.W.2d 144. (b) Where a separation is the sole fault of the husband, the wife is not obligated to comply with his request for a reunion and her failure so to do will not terminate his liability to support her. Wyrick v. Wyrick, 162 Mo.App. 723; Kindorf v. Kindorf, 161 S.W. 318, 178 Mo.App. 635; Broaddus v. Broaddus, 221 S.W. 804; Stauffer v Stauffer, 226 S.W. 40, 205 Mo.App. 515. (c) A wife is presumed to be legally entitled to support. Schulze v. Schulze, 251 S.W. 117. (d) Similar statutes in other states have been so construed as to grant relief to wives separated from their husbands by the fault of the husbands. Messmore v. Madison Glue Mfg. Co. (Ind. App.), 145 N.E. 556; Fort Wayne Corrugated Paper Co. v. Tobey, 150 N.E. 105; Colgate & Co. v. Smith (Ind. App.), 151 N.E. 105; H. G. Goelitz v. Industrial Board (Ill.), 115 N.E. 855; Partee v. Memphis Concrete Pipe Co. (Tenn.), 295 S.W. 68; State ex rel. London & Lancashire Ind. Co. v. District Court (Minn.), 166 N.W. 772; Industrial Commission v. Dell (Ohio), 135 N.E. 669. (e) In this case there was not actually a request by the husband for a reunion. (f) The husband has since acknowledged his fault and the continuance of his obligation to support his wife by sending money to her. Cotter v. Valentine Coal Co., supra. (3) The court has full power to reverse an award based upon erroneous rulings of law.

Holland, Lashly & Donnell for respondents.

(1) The Workmen's Compensation Commission did not go beyond the issues in this case in rendering its award upon the issue of the legal liability of the deceased employee to support the appellant. 1. Section 3349, Revised Statutes 1929, provides that all proceedings before the Commission shall be simple, informal and summary, and without regard to the technical rules of evidence. The statute does not require any pleading upon the part of the employer or insurer. There is no evidence in the record that the Workmen's Compensation Commission has adopted any rule requiring the employer or the insurer to file an answer. 2. No answer was filed by the insurer, nor is there anything in the record to indicate that it adopted the answer of the employer. 3. There was no entrapment or deception upon the appellant by requiring her to prove that the deceased was legally liable to support her: (a) The employee and the appellant, being separated, the burden was upon the appellant to prove facts showing legal liability of the employee to suport the appellant. Cotter v. Valentine Coal Co., 14 S.W.2d 660. (b) At the first hearing of this case on January 20, 1930, a continuance was agreed to so that the appellant might come to St. Louis to testify, as "there is a dispute in this case as to marriage." This was one year, three months and nine days before the appellant put on her testimony in this case. (c) By letter dated February 20, 1930, the Workmen's Compensation Commission notified the appellant and her counsel that, on account of the fact that an investigation is being made as to the dependency of the appellant, the hearing was being continued until further advice from the parties. This was one year, two months and nine days before the appellant put on her testimony to prove her case. (d) The minute sheet of the Workmen's Compensation Commission shows that the hearing set for February 28, 1930, was continued because an investigation as to dependency of the appellant was being made. (e) In the hearing before the Commission the appellant's attorney recognized that it was incumbent upon appellant to show that the deceased employee was legally liable to support her. (2) There is substantial competent evidence in the record to support the Commission's finding of fact that the separation between appellant and the deceased employee was by mutual consent; that subsequently the deceased employee requested the appellant to come and live with him and she refused. On this finding of fact the Commission properly ruled that the appellant had forfeited her right to support from the employee and terminated his legal liability to support her. Cotter v. Valentine Coal Co., 14 S.W.2d 660; Coulter v. Coulter, 175 Mo.App. 1; Lindenschmidt v. Lindenschmidt, 29 Mo.App. 295; 30 C. J. 519. (b) The finding of fact being supported by substantial evidence, this court must uphold said finding. Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Kinder v. Hannibal Car Wheel & Foundry Co., 18 S.W.2d 91; De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961.

BECKER, J. Haid, P. J., and Nipper, J., concur.

OPINION

BECKER, J.--

On May 27, 1929, John Brown, while working for the J. A. Kreis & Sons as a laborer under the name of Clyde Caldwell, sustained an injury from which he died. In due course Mattie Lee Brown Caldwell, as his widow, and thereafter Frank Bomar, father of the deceased, filed claims for compensation before the Missouri Workmen's Compensation Commission. The claims were heard together first before a referee, and on review by the full Commission resulted in the denying of compensation to either claimant. Herein we are considering solely the appeal of the claimant widow.

It was stipulated that Caldwell was employed by the employer and that on May 27, 1929, he suffered an accidental injury arising out of and in the course of his employment, and that he later died as a result of such injury. After a hearing the referee made a finding that the deceased was not legally liable for the support of his wife at the time he met with his injury which resulted in his death, and further that the deceased was not contributing to the support of his wife at the said time, and therefore that she was not a dependent. Upon a review by the Commission a final award was entered affirming said award of the referee.

Under our Workmen's Compensation Act, section 3319(d), Revised Statutes of Missouri 1929, it is provided that a wife shall be conclusively presumed to be totally dependent for support upon a husband legally liable for her support, and here on appeal the sole question for review is whether there is sufficient competent evidence in the record to support the ruling of the Commission that the deceased, John Brown, was not legally liable for the support of his wife, Mattie Lee Brown Caldwell, at the time he met with his injury which resulted in his death.

The award of the referee, which was adopted by the full Commission, on the question in point, finds that "the deceased left his wife, Mattie Brown, the latter part of 1925, and went to Jacksonville, Florida. It is true that there is no evidence in the record that the deceased left his wife because of her misconduct, but the record indicates the deceased went to Jacksonville, Florida, to work, and that during the time he was living in Jacksonville he requested that his wife come and live with him, which she refused to do."

"It is the husband's right to choose and establish the matrimonial domicile, . . . and on change of domicile by the husband it is the duty of the wife to follow him to the new domicile." . . .

". . . It is well settled that where a wife lives apart from her husband, with his consent, she cannot be said to have abandoned him and he is bound to support her and will remain bound until she refuses to return upon his request. . . ."

". . . The mere fact that the claimant, Mattie Lee Brown Caldwell, was the widow of the deceased, Clyde Caldwell, is not sufficient to conclusively show that he was legally liable for her support. [See Beecham v. Motor Co., 225 Mo.App. 619, 38 S.W.2d 535.]"

"In the case at bar it appears that the deceased employee left Birmingham, Alabama, with a labor gang and went to Jacksonville, Florida, where he worked; that while the deceased was living in Jacksonville, Florida, he requested that his wife come and live with him, which she refused to do. The records do not indicate why she refused to live with her husband."

"The referee therefore finds that the deceased was not legally liable for the support of his wife, Mattie Brown, at the time of his injury, . . . and she is not a dependent. . . ."

We have examined the record and are constrained to the view, and so hold, that there is not sufficient competent evidence in the record to support the finding of facts outlined above. In arriving at this conclusion we have in mind that on appeal, in the absence of fraud, the finding of facts made by the Commission within its powers is conclusive and binding and that such finding of facts and award of the Commission have the force and effect of the verdict of a jury. [Leilich v. Motor Co., 328 Mo. 112, 40 S.W.2d 601; Jones v. Coal Co. (Mo. App.), 46 S.W.2d 196; Rolens v. Constr. Co. (Mo. App.), 24 S.W.2d 1077; Kinder v. Hannibal Car Wheel & Fdry. Co. (Mo. App.), 18 S.W.2d 91.]

Furthermore in determining...