Cunningham v. Management & Engineering Corporation

• Decision Date: 04 February 1932
• Docket Number: No. 4900.,4900.
• Citation: 45 S.W.2d 899
• Parties: CUNNINGHAM et ux. v. MANAGEMENT & ENGINEERING CORPORATION et al.
• Court: Missouri Court of Appeals

45 S.W.2d 899

CUNNINGHAM et ux. v. MANAGEMENT & ENGINEERING CORPORATION et al.

No. 4900.

Springfield Court of Appeals. Missouri.

February 4, 1932.

Appeal from Circuit Court, Pulaski County; Joseph H. Bowron, Judge.

Proceeding under the Workmen's Compensation Act by R. W. Cunningham and Mrs. R. W. Cunningham, parents, for the death of Raymond Cunningham, their minor son, claimants, opposed by the Management & Engineering Corporation, employer, and the Fidelity & Casualty Company, insurer. From judgment sustaining award by the Workmen's Compensation Commission, the employer and the insurer appeal.

Affirmed.

George A. Hodgman, of St. Louis, for appellants.

Phil M. Donnelly, of Lebanon, for respondents.

BAILEY, J.

This is an appeal from a judgment of the circuit court of Pulaski county, affirming a final award of the Missouri Workmen's Compensation Commission in favor of the surviving parents of a minor son, Raymond Cunningham. The original hearing was before Hon. Orin H. Shaw, a member of the Missouri Workmen's Compensation Commission, who made an award allowing $150 for burial expenses and as death benefits awarded to Mr. and Mrs. R. W. Cunningham, parents, the sum of $15 per week for 200 weeks. On review before the whole commission, the award of the commission was modified after finding the employee's wages to be $21 per week. The father was awarded $6 per week for 175 weeks and the mother was also awarded $6 per week for 175 weeks.

Appellants state the circuit court erred in entering judgment sustaining the award of the commission because the facts found by the commission do not support the award, and the commission, under the record, had no legal authority to make an award. This assignment raises the question as to whether or not, under the evidence most favorable to respondents, the award and judgment should be sustained. In other words, the award the commission occupies the same impregnable position as does the verdict of a jury, and must be upheld if there be any competent evidence upon which it may be supported. Section 3342, R. S. Mo. 1929; Hager v. Pulitzer (Mo. App.) 17 S.W.(2d) 578; Cotter v. Valentine Coal Co., 222 Mo. App. 1138, 14 S.W.(2d) 660; Travelers' Ins. Co. v. Davis et al. (Mo. App.) 42 S.W.(2d) 945. We are therefore barred from weighing the evidence, but must give these claimants the benefit of all the evidence as well as such favorable inferences as may be deduced from the facts.

There is no dispute in regard to the employment of deceased, Raymond Cunningham, nor as to the facts relating to the accident. The fatal injury occurred on June 8, 1929, while deceased was employed, along with other men, in constructing a high line across Pulaski county. The employer was the Management & Engineering Corporation, and the insurer was the Fidelity & Casualty Company of New York, both appellants here. Plaintiffs are the father and mother, respectively, of Raymond. The sole issue in the case is whether or not plaintiffs adduced sufficient evidence as to their dependence to support the award.

The material facts are about as follows: Plaintiffs owned and lived upon a farm of 160 acres. This farm was mortgaged for $5,000 at the time of the death of Raymond. The family, living at home, consisted of the plaintiffs, another son age 13, and a daughter 24. Raymond, the employee, had gone to high school, one year in the town of Conway and three years in Phillipsburg, from which latter school he graduated in May, 1929. One week later he began working for the Management & Engineering Corporation, and continued to work for about three weeks, when he was killed, as stated, on June 8, 1929, at the age of 19. He never lived to draw a pay check, but checks given for his work were cashed by plaintiffs after his death. During the time Raymond attended school he lived at home, paid no board, and drove back and forth from the farm to the school each day. During the summer vacation and after school he worked continuously on the farm for his father. He had never had any income or regular job prior to his employment by defendant, and, other than his labor on the farm, and money derived from an odd job he occasionally procured, he contributed nothing to the support of the family. At the time he went to work for defendant he had promised and agreed to turn over to plaintiffs all the money he earned over and above what might be required for his own support. But, as heretofore indicated, he never lived to fulfill that promise. He was rooming and boarding with an elder brother at the time of his death, and at a place near the home of his parents, which board and room was to cost him about $7 per week. During the short period he had worked he had visited his parents' home after work hours and had left most of his clothes there.

The last year he went to school his expenses, paid by his parents, were about $250. The mother testified he was to pay back what they had been "out" on him. The father's health is not good, and he was 50 years of age, the mother 51, at the time of the hearing.

The foregoing constitutes substantially all the evidence bearing on the question of dependency. The statute provides that the word "dependent" as used in the Workmen's Compensation 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." Section 3319 (d), R. S. Mo. 1929. It is further provided that "questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury." Section 3319 (d) (2), supra.

Commissioner Shaw, in the original hearing of this case, found that under the evidence the employee showed an intent to send part of his wages to his parents. He further ruled that as to whether this intent, without actual contribution, would constitute dependency was a question of law, and that under the law the father and mother were partial dependents. This finding was approved by the entire commission, and, on appeal, by the Circuit Court.

The question seems to be one of first impression in this state. We must be guided by a broad interpretation of the statute to the end that the public welfare may best be served, but under no circumstances may we, by judicial construction, read into the statute something beyond its reasonable and unequivocal purview.

It is apparent from a reading of the commission's finding in this case that, during the period the son Raymond Cunningham was attending school, the plaintiffs, his parents, were not dependent upon him for their support. No other reasonable conclusion could be reached from the facts. His last year in school had cost plaintiffs $250, which they expected him to repay. It is true he worked for his father on the farm after school and during the summer months. There is no evidence as to the amount or value of such work; there is no evidence as to the cost of his maintenance, consisting of room and board. While the cost of the maintenance of a contributing son should not be considered in determining the amount of compensation to which the defendant parents may be entitled (Clingan v. Carthage Ice & Cold Storage Co., 223 Mo. App. 1064, 25 S.W.(2d) 1084), yet we think it might be considered in determining the fact of dependency itself. Dembrinski's Case, 231 Mass. 261, 120 N. E. 856.

Defendants take the position that these plaintiffs, while supporting and undertaking to give their son Raymond an education and contributing considerable sums on that account, could not have been dependent upon him for support. It is clear he was helping all he could, but, in so far as the evidence shows, not in excess of plaintiffs' contributions to him. If dependency depends on contributions prior to the death of the employee, the argument of defendants must prevail, because there was no evidence of dependency prior to the time the son became an employee of defendant.

We then come to the question as to whether a promise by a minor son to contribute to the support of his parents, in straitened circumstances, unfulfilled because of the untimely death of the son and employee before his first pay day, is...