Elihinger v. Wolf House Furnishing Co.

Decision Date09 July 1935
Citation85 S.W.2d 11,337 Mo. 9
PartiesFred Elihinger and Lonie Elihinger v. Wolf House Furnishing Company, Lincoln House Furnishers, Inc., Employer, Consolidated Underwriters Insurance Company, Insurer, Appellants
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals; Hon. Frank Kelly Judge.


Oliver & Oliver, Elmer A. Strom and E. B. Simpson for appellants.

(1) Before dependency can be established under the provisions of the Workmen's Compensation Act (except where by the act dependency is conclusively presumed) the deceased employee must have been under a legal obligation to support claimants and it must be shown that there was a reasonable probability that that duty would be fulfilled. Hill v. Nafziger Baking Co., 57 S.W.2d 773; Glaze v. Hart, 36 S.W.2d 684, 225 Mo.App. 1205. (2) The adult deceased employee, Arnold Elihinger, was under no legal obligation to contribute to or to support the claimants. McCullough v Powell Lumber Co., 205 Mo.App. 15. (3) The test of the right to compensation is dependency and not financial injury. Sweeny v. Sweeny Tire Stores Co., 49 S.W.2d 205. (4) The cost of the maintenance of an adult deceased employee is properly considered, not only for the purpose of determining dependency but for determing the amount of the contribution. Cunningham v. Management & Engineering Corp., 45 S.W.2d 899, 226 Mo.App. 215. (5) Partial dependents are entitled to compensation proportionately to the amount contributed. Here the award, if any was authorized under the act, should have run in favor of Fred Elihinger, Lonie Elihinger, and Lonie Elihinger's mother, jointly, and the award as made is excessive. Sec. 3319 (c), R. S. 1929; Triola v. Western Union, 25 S.W.2d 518, 224 Mo.App 258; Cunningham v. Management & Eng. Corp., 45 S.W.2d 899, 226 Mo.App. 215; Clingan v. Carthage Ice & C. S. Co., 25 S.W.2d 1084, 223 Mo.App. 1064; Robinson v. Union Electric Co., 43 S.W.2d 912. (6) The plain and unequivocal terms of the Missouri Workmen's Compensation Act cannot be extended by judicial construction beyond their reasonable import, and the right of compensation does not exist except in the instances and under the circumstances provided in the act. Glaze v. Hart, 36 S.W.2d 684, 225 Mo.App. 1205; Robinson v. Union Electric Co., 43 S.W.2d 912; Gendron, Admin., v. Chapin & Co., 37 S.W.2d 486, 225 Mo.App. 466. (7) The burden of proving dependency rests upon claimants, and unless the award can be supported by sufficient competent evidence within the definition of a "dependent" their case fails. The case fails here for: There was no proof that the support was necessary or that there was reasonable probability to believe that if it was made that it would continue. There was no proof that claimants, particularly Mr. Elihinger, relied upon the deceased for support, and in fact, Mr. Elihinger was amply able to support himself and, in fact, did so. The weekly payments made by the deceased were in payment of his own board, laundry, room, clothing, personal expenses, and for the payment of installments on the purchase of a piano, living room suite, and the purchase of an automobile and the incidental expenses in connection therewith. The award as made was based on conjecture, estimates and not the direct testimony essential to validate an award. Shaefer v. Williams Bros., 44 S.W.2d 185; Munton v. Driemeyer, 22 S.W.2d 61. (8) To establish dependency there must be direct competent evidence that claimants depended on the alleged contributions and that same were necessary. Clingan v. Carthage Ice & C. S. Co., 25 S.W.2d 1084, 223 Mo.App. 1064; Glaze v. Hart, 36 S.W.2d 684, 225 Mo.App. 1205. (9) Dependency must be actual and an award of the Compensation Commission based on mere guess, conjecture, surmise, speculation or opinion, unsupported by any direct competent evidence will not be sustained. Workmen's Compensation Act, Sec. 3319 (d), R. S. 1929; Allison v. Eyerman Const. Co., 43 S.W.2d 1063; Shaefer v. Williams Bros., 44 S.W.2d 185.

Dearmont, Spradling & Dalton for respondents.

(1) The facts in this case disclose that the father and his deceased son were the wage earners of the family; that the claimants and the deceased lived in a common household, and ate at the same table; and that the contributions made by the deceased went into the regular family fund, which was drawn upon whenever necessity required. Under these facts the claimants were dependents of the deceased. Subsec. (d), Sec. 3319, R. S. 1929; Sweeny v. Sweeny Tire Store Co., 49 S.W.2d 208; Schmelzle v. Ste. Genevieve Lime & Quarry Co., 37 S.W.2d 485; Rasor v. Marshall Hall, 25 S.W.2d 507. (2) Under the statute and the adjudicated cases in this State, the claimants were entitled to the full amount of the award under the statute. Schmelzle v. Ste. Genevieve Lime & Quarry Co., 37 S.W.2d 486; Sweeny v. Sweeny Tire Store Co., 49 S.W.2d 208; Clingan v. Carthage Ice & C. S. Co., 25 S.W.2d 1086; Triola v. Western Union Telegraph Co., 25 S.W.2d 519. (3) The award of the commission was based upon a finding of fact adequately supported by the record. Such a finding has the force and effect of a jury verdict and is conclusive and binding upon the courts on appeal. In determining the sufficiency of the evidence to sustain the finding of facts by the commission, the appellate court will look only to the evidence which is most favorable, adding thereto all reasonable inferences of fact to be drawn therefrom to support such finding, and will disregard all opposing evidence as is done in passing on a demurrer to the evidence in ordinary civil actions. Bise v. Tarlton, 35 S.W.2d 993; Keithley v. Woods Bros. Const. Co., 56 S.W.2d 632; Tassi v. Haase & Sons Fish Co., 56 S.W.2d 797; Moran v. Edward Peterson Const. Co., 56 S.W.2d 809; Taylor v. City Ice & Fuel Co., 56 S.W.2d 812; Bender v. Midwest Pipe & Supply Co., 57 S.W. 707; De Moss v. Evens & Howard Fire Brick Co., 57 S.W.2d 720; Miliato v. Jack Rabbit Candy Co., 54 S.W.2d 779; Kasper v. Liberty Foundry Co., 54 S.W.2d 1002; Morris v. Dexter Mfg. Co., 40 S.W.2d 750.

Ferguson, C. Hyde and Bradley, CC., concur.


This is an appeal from the judgment of the Circuit Court of Cape Girardeau County affirming an award of the Workmen's Compensation Commission in favor of respondents, Fred Elihinger and Lonie Elihinger, parents of Arnold Elihinger, deceased, who was, at the time of the injury which resulted in his death, employed by appellant Wolf House Furnishing Company a subsidiary branch of the Lincoln Home Furnishers. It was stipulated and agreed that on September 9, 1932, Arnold Elihinger sustained an injury "by accident arising out of, and in the course of, his employment" by the Wolf Company; that "both the employer and employee, were operating under the Workmen's Compensation Law;" that "all liability under such law is covered by the Consolidated Underwriters Insurance Company" also an appellant here; that the deceased employee "died October 20, 1932, as result of the injury sustained in the accident of September 9, 1932;" that "the employee had worked for" the Wolf Company "for a period of 25 5/7 weeks preceding this accident and received wages at the rate of $ 15 per week during that period;" that if an award be made in favor of the claimant parents "the average weekly wage may be computed at $ 15;" and that the "insurer paid as compensation to the deceased employee before his death the sum of $ 48.05," and paid $ 150 as funeral expenses. As stated the claim was filed by the father and mother of the deceased employee.

The stipulation which we have summarized, supra, reduced the issue involved to that of dependency of the parents, that is their right to maintain a claim as dependents, and, if same be allowed, the proper amount of the award under the facts. The employer and the insurer, as appellants, deny that the parents are, or can be considered under any circumstances, dependents, either total or partial, within the meaning of our Workmen's Compensation Law. The employee was twenty-one years and ten months of age at the time of his death. Appellants' position is that since there was no legal obligation upon the son to support, or contribute to the support of, his parents they cannot be considered "in any sense legal dependents" and regardless of his contributions toward their support at the time of, and of which they were deprived by his death, they are not entitled to the benefits allowed dependents by the Workmen's Compensation Law. This appeal went to the St. Louis Court of Appeals and that court in a well-considered opinion, 72 S.W.2d 144, from which we shall later make numerous quotations, held against appellants' contention and ruled that under the facts, which we shall later set out, the parents were "dependents" within the meaning of that term as used in the Workmen's Compensation Law, all the judges of that court concurring, but deeming the opinion to be in conflict with the opinion of the Kansas City Court of Appeals in Hill v. Nafziger Baking Co., 227 Mo.App. 846, 57 S.W.2d 773, certified the cause here and it becomes our duty to "rehear and determine said cause . . . as in case of jurisdiction obtained by ordinary appellate process." [Sec. 6, Amend. 1884, Art. 6, Constitution of Missouri.]

The evidence was that Arnold Elihinger, the employee, was a single man and made his home with his parents, the claimants here; that the family, or members of the household consisting of the mother, father, Arnold, the son, and his maternal grandmother resided in a rented house at Cape Girardeau; that Arnold started to work at the age of sixteen and that he worked for some time during his minority for the International Shoe Company at Cape Girardeau but quit that position a few months after...

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