Cotter v. Valentine Coal Co.

• Decision Date: 11 February 1929
• Citation: 14 S.W.2d 660,222 Mo.App. 1138
• Parties: LAURA B. COTTER, APPELLANT, v. VALENTINE COAL COMPANY ET AL., RESPONDENTS. [*]
• Court: Kansas Court of Appeals

14 S.W.2d 660

222 Mo.App. 1138

LAURA B. COTTER, APPELLANT, v. VALENTINE COAL COMPANY ET AL., RESPONDENTS. ^[*]

Court of Appeals of Missouri, Kansas City

February 11, 1929

Appeal from the Circuit Court of Bates County.--Hon. C. A. Calvird Judge.

Judgment reversed and remanded.

Sylvan Bruner and Mosman, Rogers & Buzard for appellant.

Silvers & Sheppard, Pingry, Nulton & Stevenson and Con Murphy for respondents.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

One William Cotter received injuries on March 12, 1927, resulting in his death on July 5th, of that year, under such circumstances as to entitle his dependents, if any, to a death benefit from defendant, his employer, under the terms of the Workmen's Compensation Act (Laws of 1927, page 490).

Plaintiff who had been separated from the deceased for eighteen years before his death instituted a proceeding before the Workmen's Compensation Commission for a death benefit, which she claims to be due her as the widow of said Cotter. The case was first tried before one of the members of the Commission, who made the following findings in reference to the matter under dispute:

"The most favorable construction which can be placed on the evidence is that it was a separation by mutual consent, with no offer in good faith on the part of either the husband or wife to return to the other, and until the wife makes such an offer she is as guilty as he, and cannot hold him legally liable for her support. So she cannot be conclusively presumed to be totally dependent for support upon the deceased employee as provided in Section 21 (d) (1) of the Act, nor is she dependent in fact because the evidence shows that he was contributing nothing to her support for many years."

Plaintiff filed her application for a review and a hearing was had before the full Commission which sustained the award of said commissioner. Plaintiff thereupon appealed to the circuit court of Bates county where the cause was submitted to the court without a jury, upon the certified record of the case before the commission. At the request of the defendant the court found that plaintiff was not actually dependent upon William Cotter at the time of his death and had not been during the time of their separation, and that "there is no evidence that William Cotter was legally liable for the support of Laura B. Cotter at the time of his death, and that the burden of proof, to show such legal liability, was on the claimant, Laura B. Cotter, she having been separated from her husband and living separate and apart from him for about eighteen years." (Italics ours.) Numerous declarations of law were requested by plaintiff but refused by the court. The court rendered judgment for the defendant. Plaintiff has appealed.

The only testimony adduced before the Commission was that of the deposition of plaintiff introduced by defendant. She testified that she and deceased lived together about eighteen years; that plaintiff had been previously married to one Burke from whom she was divorced at the time of her marriage to deceased. She further testified that no children were born of her marriage with the deceased; that they separated about eighteen years prior to his death; that they were then living in Pittsburg, Kansas; that after the separation plaintiff and her daughter were employed in a store in Pittsburg for about eight years; that her daughter then married and plaintiff stopped working and lived with her daughter and the latter's husband in Pittsburg, Kansas, Osawatomie, Kansas and Taylorville, Illinois, and was wholly supported by them; that deceased contributed nothing to her support after the separation.

In reference to the cause of the separation plaintiff testified that she did not leave deceased but that he "left me" and went to Midway, Kansas, to live with his sister; that about a month afterwards he returned and "took his belongings;" that this was the last time she had any communication with deceased, either verbally or in writing. At the time they separated deceased told her "if I ever needed any money to ask him for it, and if he had it I should have it." "If I asked him for it he would give it to me," "he would help me." She testified that she had never asked him for any money, although she needed money during the eighteen years transpiring from the time of the separation to his death; that she "had never needed it bad," or she "would have asked him for it;" that she intended to ask him for money "if I needed it bad enough." She testified that she had had "absolutely nothing to do with him (deceased) during the eighteen years" that they were separated; that she was living in Pittsburg at the time the accident happened to him, and although she was there most of the time until his death she did not visit him or telephone the hospital to ascertain his condition; that he did not send for her and she supposed he did not wish to see her. It appears that neither the plaintiff nor the deceased ever applied for a divorce.

It is contended by the plaintiff that the court erred in rendering judgment for the defendant. Section 21 of the Compensation Act reads in part as follows:

"The word 'dependent' as used in this act shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his wages at the time of the injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee in the following order and any death benefit shall be payable in the following order, to-wit:

"1. A wife upon a husband legally liable for her support and a husband mentally or physically incapacitated from wage earning upon a wife. Provided that on the death or remarriage of a widow, the death benefit shall cease unless there be other dependents entitled to any unpaid remainder of such death benefit under this act." (Italics ours.)

Plaintiff does not claim that there was any actual dependency upon deceased for her support, but insists that he was legally liable for her support, and therefore, she was conclusively presumed to be totally dependent upon him for support within the meaning of the statute.

We are limited by the provisions of section 44 of the Act, as was the trial court, in our review of the facts in this case. This section provides that upon an appeal from the commission to the circuit court:

"No additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for re-hearing, or set aside the award upon any of the following grounds and no other:

"1. That the commission acted without or in excess of its powers.

"2. That the award was procured by fraud.

"3. That the facts found by the Commission do not support the award.

"4. That there was not sufficient competent evidence in the record to warrant the making of the award."

This section also provides for an appeal from the circuit court to the appellate courts.

In determining the sufficiency of the evidence to sustain the finding of fact by the commission this court will look only to the evidence which is most favorable to support such finding. Such finding stands on the same footing as a verdict of a jury or finding by a trial court sitting as a jury. If there is sufficient evidence to sustain the finding of the commission, the question then to be determined is whether or not the law imposes the burden upon deceased to support his wife under the facts found by the commission, in other words whether the facts found by the commission support the award. [Colgate & Co. v. Smith, 151 N.E. 434.] In this connection the evidence establishing that plaintiff and deceased were separated and living apart, the burden was upon the plaintiff to show that he was legally liable for her support at the time of his injury. [Jelicic v. Vermillion Coal Co., 144 N.E. 38; Sturbridge v. Franklin, 160 Mass. 149, 35 N.E. 669; 30 C. J. 595.]

We think that the Workmen's Compensation Act contemplates unequivocal findings of fact on the part of the commission, and we do not feel that the findings of fact by the commission in this instance fully meet the requirements of the statute. But the findings were evidently intended for that purpose and we will so regard them and assume that the findings were that the separation was by mutual consent and there was no offer in good faith by either party to return to the other.

In reference to the liability of a husband to support his wife where the separation is by mutual consent it is stated in McKinney v. Guhman, 38 Mo.App. 344, 347: "When there has been a mutual separation between husband and wife, two things are necessary to relieve the husband from the payment of debts contracted by the wife for necessaries: First. The husband must make an allowance to the wife for her support, and the amount so allowed must be reasonably sufficient to furnish the wife with necessaries. The word 'necessaries' would include board, washing, suitable clothing and medical attendance. Second. The allowance must be regularly paid. The mere agreement of the husband to pay the allowance does not relieve him of the legal obligations; nothing short of actual performance will suffice." [See, also, Dwyer v. Dwyer, 26 Mo.App. 647, 653; Lindenschmidt v. Lindenschmidt, 29 Mo.App. 295; Coulter v. Coulter, 175 Mo.App. 1, 7, 161 S.W. 281.]

It is held in the Lindenschmidt case that where a wife lives apart from her husband with his consent he is bound to support her but if she refuses to return upon his request she is not entitled to a...