Elihinger v. Wolf House Furnishing Co.

• Decision Date: 05 June 1934
• Parties: FRED ELIHINGER AND LONIE ELIHINGER, CLAIMANTS, RESPONDENTS, v. WOLF HOUSE FURNISHING COMPANY, LINCOLN HOUSE FURNISHERS, INC., EMPLOYER, CONSOLIDATED UNDERWRITERS INSURANCE COMPANY, INSURER, APPELLANTS
• Court: Missouri Court of Appeals

72 S.W.2d 144

230 Mo.App. 648

FRED ELIHINGER AND LONIE ELIHINGER, CLAIMANTS, RESPONDENTS, v. WOLF HOUSE FURNISHING COMPANY, LINCOLN HOUSE FURNISHERS, INC., EMPLOYER, CONSOLIDATED UNDERWRITERS INSURANCE COMPANY, INSURER, APPELLANTS

Court of Appeals of Missouri, St. Louis

June 5, 1934

Appeal from the Circuit Court of Cape Girardeau County.--Hon. Frank Kelly, Judge.

Affirmed and certified to the Supreme Court.

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. (Mo. App.), 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. (Mo App.), 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 determining 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. Mo. 1929; Triola v. Western Union, 25 S.W.2d 518, 224 Mo.App. 258; Cunningham v. Management & Engineering Corp., 45 S.W.2d 899, 226 Mo.App. 215; Clingan v. Carthage Ice & Cold Storage 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 et al., 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. Shaefer v. Williams Bros. (Mo. App.), 44 S.W.2d 185; Munton v. Driemeyer (Mo. App.), 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 & Cold Storage 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. Mo. 1929; Allison v. Eyerman Const. Co. (Mo. App.), 43 S.W.2d 1063; Shaefer v. Williams Bros. (Mo. App.), 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 205, 208; Schmelzle v. Ste. Genevieve Lime & Quarry Co., 37 S.W.2d 482, 485; Rasor v. Marshall Hall, 25 S.W.2d 506, 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 482, 486; Sweeny v. Sweeny Tire Store Co., 49 S.W.2d 205, 208; Clingan v. Carthage Ice & Cold Storage Co., 25 S.W.2d 1084, 1086; Triola v. Western Union Telegraph Co., 25 S.W.2d 518, 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 (Mo. App.), 35 S.W.2d 993; Keithley v. Woods Bros. Const. Co. (Mo. App.), 56 S.W.2d 628, l. c. 632; Tassi v. A. C. L. Haase & Sons Fish Co. (Mo. App.), 56 S.W.2d 797; Moran v. Edward Peterson Const. Co. (Mo. App.), 56 S.W.2d 809; Taylor v. City Ice & Fuel Co. (Mo. App.), 56 S.W.2d 812; Bender v. Midwest Pipe & Supply Co. (Mo. App.), 57 S.W. 707; De Moss v. Evans & Howard Fire Brick Co. (Mo. App.), 57 S.W.2d 720; Miliato v. Jack Rabbit Candy Co. (Mo. App.), 54 S.W.2d 779; Kasper v. Liberty Foundry Co. (Mo. App.), 54 S.W.2d 1002; Morris v. Dexter Mfg. Co. (Mo. App.), 40 S.W.2d 750.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This is an appeal by the employer and insurer from a judgment of the Circuit Court of Cape Girardeau County, affirming a final award of the Workmen's Compensation Commission, awarding death benefits to claimants as partial dependents of a deceased employee of the appellant employer.

Claimants having duly filed their claim for compensation, the employer and insurer filed an answer in which they denied that claimants were in any way dependents of the deceased employee. The cause was heard before a referee of the Workmen's Compensation on January 19, 1933. At the hearing it was stipulated and agreed by and between the parties that on or about September 9, 1932, the employee sustained an injury by accident arising out of and in the course of his employment with the employer; that the employer and employee were operating under the Missouri Workmen's Compensation Law, and that all liability under such law was fully covered by the insurer; that the employer had notice of the accident and that the claim for compensation was duly filed within the time prescribed by law. It was further stipulated and agreed that the employee died on October 20, 1932, as a result of the accident, and that the employee had worked for the employer for a period of twenty-five and five-sevenths weeks preceding the accident, and had received wages at the rate of $ 15 per week during that period. It was also stipulated and agreed that for the purpose of any award, the average weekly wage should be computed at $ 15, and that the insurer had paid as compensation to the employee, before his death, the sum of $ 48.05, and had also paid $ 150 for his funeral expenses.

The testimony at the hearing before the referee, showed that the employee was twenty-one years and eleven months old at the time of his death; that he was single and unmarried and made his home with his father and mother, the claimants herein; that the members of the household consisted of Arnold Elihinger, the employee, Fred Elihinger, the employee's father, Lonie Elihinger, employee's mother, and the employee's maternal grandmother. Prior to attaining his majority, the employee had been employed by the International Shoe Company, at Cape Girardeau, and the money he received as wages for that employment was given to his mother. He continued to deliver to his mother the wages he received from that employment until after he reached the age of twenty-one years. In March, 1932, a few months after he was twenty-one years old, he quit his employment at the International Shoe Company and thereafter went to work for the employer herein.

At the time of his death the employee was earning $ 15 a week, which was almost invariably paid to his father, who would take it home and give it to the mother of the employee, along with $ 13 a week which the father earned as an employee of the same employer. The combined wages of father and son, totaling $ 28 per week, thus turned over to the mother of the employee, were kept by her in one pocket-book, and used as a common fund for the payment of rent, for buying clothing for the members of the family, for the purchase of groceries and supplies and for the payment of bills for light and water, as well as other incidental expenses of the home. Sometimes the father paid the rent for the home, and sometimes the mother did so, but whoever paid it, used money out of the common fund made up of the earnings of father and son.

The testimony showed that the earnings of the father and the earnings of the son were never kept separate, but were commingled, and that the money earned by them had always been handled in that manner from the time the son began to earn money at the age of sixteen years.

The family occupied a four room house in the City of Cape Girardeau as their home. The son occupied one of the rooms at the home as a bedroom, but also used all the other rooms thereof the same as the other members of the family, and ate at the same table with them.

The testimony showed that the mother took care...