Clingan v. Carthage Ice & Cold Storage Co.

• Court: Missouri Court of Appeals
• Writing for the Court: COX, P. J.
• Citation: Clingan v. Carthage Ice & Cold Storage Co., 25 S.W.2d 1084, 223 Mo.App. 1064 (Mo. App. 1930)
• Decision Date: 17 February 1930
• Parties: EUGENE CLINGAN AND OLA CLINGAN, RESPONDENTS, v. CARTHAGE ICE AND COLD STORAGE COMPANY, A CORPORATION, AND UNITED STATES FIDELITY & CASUALTY COMPANY, APPELLANTS. [*]

25 S.W.2d 1084

223 Mo.App. 1064

EUGENE CLINGAN AND OLA CLINGAN, RESPONDENTS, v. CARTHAGE ICE AND COLD STORAGE COMPANY, A CORPORATION, AND UNITED STATES FIDELITY & CASUALTY COMPANY, APPELLANTS. ^[*]

Court of Appeals of Missouri, Springfield

February 17, 1930

Rehearing denied March 27, 1930.

Appeal from Jasper County Circuit Court, Division Number One.--Hon R. H. Davis, Judge.

AFFIRMED.

Judgment affirmed.

Edgar Fenton, H. R. Palmer, Clarence Craig and George V. Farris for appellants.

(1) Respondents were not dependents and not entitled to the award as made. Workmen's Compensation Act, sec. 21, par. (d); Laws of Mo. 1925, p. 388; 1 Schnider on Workmen's Compensation, p. 898; Miller v. Riverside S. & C., 153 N.W. 465, 189 Mich. 360; Donovan v. Holly Cross Cemetery, 1 Cal. Ind. Com. Rep. 37. (2) Even if it should be found that respondents were partially dependents the commission in fixing the amount of award should have deducted the reasonable cost of boarding and keeping said deceased minor employee. Engberg v. Victoria Copper Mining Company, N.W. 840, 201 Mich. 570; Federal Mutual Liability Co. v. Ind. Accident Comm., 199 P. 796; Moll v. City Bakery, 165 N.W. 6495, 199 Mich. 670; Milwaukee Basket Co. v. Weicki, 181 N.W. 308, 173 Wis. 391; Pushor v. Am. Ry. Express Co., 183 N.W 839, 149 Minn. 308; State ex rel. E. Fleckenstein Brewery Co. v. District Ct., 159 N.W. 755, 134 Minn. 324; Utah Fuel Co. v. Ind. Com., 245 P. 381; Paul v. State Ind. Acc. Com., 272 P. 267; Clover Fork Coal Co. v. Ayers et al., 292 S.W. 803. (3) The record shows that the deceased employee made all contributions to his mother, Ola Clingan, and that no contributions were ever made to the respondent Eugene Clingan, so that any award to Eugene Clingan was erroneous. Kelse Branch Coal Co. v. Spradling, 300 S.W. 892. (4) The Missouri Workmen's Compensation Commission had no authority to make an award to respondents as tenants by the entirety and in so doing said commission acted in excess of its powers. Laws of Mo. 1925, p. 388; In re Pagoni, 118 N.E. 948, 230 Mass. 9. (5) There was not sufficient competent evidence before the commission to warrant the making of an award to respondent. Pushor v. Am. Ry. Express Co. and Utah Fuel Co. v. Industrial Comm., supra.

J. D. Harris for respondents.

(1) The finding of the commission on an issue of fact has the force and effect of a verdict of a jury, and where there is substantial evidence to support the same its finding will not be disturbed on appeal, and the appellate court will look only to the evidence which is most favorable to support such finding, and the court will draw every reasonable inference from the evidence to that end. Cotter v. Valentine Coal Company, 14 S.W.2d 660, 662; Smith v. Levi-Zukoski Mercantile Co., 14 S.W.2d 470, 472; State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen's Compensation Commission, 8 S.W.2d 897, 899. (2) It is not essential to constitute partial dependency that the contribution should be in cash or absolutely necessary to support life. The contributions toward the reasonable comforts and conveniences of life are sufficient where relied upon by the recipients. Gonzales v. Chino Copper Co., 222 P. 903; Lumbermen's Reciprocal Assoc. v. Warner, 245 S.W. 664; Burns v. Conn. Light & Power Company, 97 Conn. 688, 118 A. 45; Pushor v. Am. Ry. Express Co., 149 Minn. 308, 183 N.W. 839; Chicago W. & F. Coal Co. v. Industrial Commission, 303 Ill. 540, 135 N.E. 784, 28 R. C. L. 779. (3) Where compensation is sought by the parents for the death of a minor son who lived in the parent's family as a member thereof, and contributed his earnings for the support of the family, the cost of the support of such minor should not be deducted from his earnings in determining the amount that should be awarded to the dependents. This doctrine is supported and sustained by abundant authority in the states having Workmen's Compensation. In re Peters, 65 Ind.App. 174, 116 N.E. 848; Richardson Sand Co. v. Industrial Commission, 291 Ill. 167, 129 N.E. 751; Chicago W. & F. Coal Co. v. Industrial Commission, 303 Ill. 540, 135 N.E. 784; Peabody Coal Co. v. Industrial Commission, 311 Ill. 338, 143 N.E. 90; Peoples Hardware Co. v. Croke, 66 Ind.App. 340, 118 N.E. 314; Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 A. 1025, L.R.A. 1916E, 110; Metal Stamping Corp. v. Industrial Commission, 285 Ill. 528, 121 N.E. 258; Day v. Sioux Falls Fruit Company, 43 S.D. 65, 177 N.W. 816; Conners v. Public Service Electric Co.,---N.J.L. 99, 97 A. 792; Colucci v. Edison Portland Cement Co., 93 N.J.L. 332, 108 A. 313; Southern Surety Co. v. Hibbs, 221 S.W. 303; Bloomington-Bedford Stone Co. v. Phillips, 65 Ind.App. 189, 116 N.E. 850; McIntire v. Department of Labor & Industries, 125 Wash. 370, 216 P. 7; Grove v. Royalty Ind. Co., 223 Mass. 187, 111 N.E. 702; In re Murphy, 218 Mass. 278, 105 N.E. 635. (4) It is finally contended that the Commission erred in making the following holding: "Section 21 (c) provides that part shall be paid to 'each of said dependents proportionately,' and this would seem to call for a separate award to each person. But if the relationship between the dependents is that of husband and wife and the contributions were made to them in that relation, the right to the death benefit is in the nature of an estate by the entirety." It would seem from this that the commission adopted a rather common sense view of the situation. It was not necessary to a decision by the commission that it hold that the estate was one by the entirety. No such requirement is made of the commission by the statute; nor did the commission in fact hold that it was an estate by the entirety, it simply used the expression by way of illustration, "their right to the death benefit is in the nature of an estate by the entirety," as a mere reason among others for adopting a common sense rule of making the award to both of them. It is submitted that the case was correctly ruled on this issue. Sec. 371, R. S. 1919; Missouri Workmen's Compensation Bul. 182, Opinion No. 298, dated June 7, 1928.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

Action under the State Workmen's Compensation Act. The State Workmen's Compensation Commission made an award to respondents as partial dependents of James Madison Clingan, their son, who was killed while in the employment of the Carthage Ice & Cold Storage Company. From this award the defendants appealed to the circuit court of Jasper county. That court affirmed the award and defendants then appealed to this court.

The evidence taken before the Commission was all offered by the claimants and shows substantially the following facts: The claimants are husband and wife living in Carthage, Missouri, and had a family of five children. The oldest was nineteen; James, the one that was killed was seventeen. The others were fifteen, ten and eight years of age. They all lived at home as one family. The father drew a salary of $ 175 per month and all of that and what was contributed by the deceased son was used in the support of the family and both parents testified that it was necessary to use it all for that purpose. The deceased began work for the Ice & Cold Storage Company June 21, 1928, and was killed July 18, 1928. He received a weekly wage of twenty-five dollars and out of that contributed fifteen dollars per week toward the support of the family. Before his employment by the Ice & Cold Storage Company, he worked for a groceryman and contributed seven dollars to ten dollars per week toward the support of the family. He would pay this money to his mother but it all went into the general fund for the support of the family and was not used by her for her individual use. In addition to these payments of money to his mother, he would, at different times, bring home groceries from the store that were used by the family. During one winter he bought all the clothes for a younger brother.

On the above facts the Commission made the allowance and by computation fixed the total at $ 2999.61 and directed it to be paid to respondents as tenants by the entirety in the sum of $ 9.998 per week for three hundred weeks less a credit of $ 150 previously paid for funeral expenses.

The points relied upon by appellant for a reversal are as follows:

(1) Respondents were not dependents. On that question the evidence shows that the entire income from the father's wages and all that this son contributed was used for the support of the family and was necessary for that purpose. Under that evidence the finding of the Commission that these parents were partial dependents was fully justified. [Lumbermen's Reciprocal Association v. Warner, 245 S.W. 664.]

(2) Even if these parents were partial dependents, the Commission in fixing the amount to be awarded should have deducted the reasonable cost of boarding and keeping the deceased minor employee.

Whether or not the cost of maintaining the deceased minor should be deducted is a question on which the courts seem to be divided. We are cited to a large number of cases from other states by counsel on both sides in this case and we do not find it possible to reconcile them. The question does not appear to have been passed...