Federal Underwriters Exchange v. Hinkle, 14678.

• Decision Date: 23 March 1945
• Docket Number: No. 14678.,14678.
• Citation: 187 S.W.2d 122
• Parties: FEDERAL UNDERWRITERS EXCHANGE v. HINKLE et al.
• Court: Texas Court of Appeals

187 S.W.2d 122

FEDERAL UNDERWRITERS EXCHANGE v. HINKLE et al.

No. 14678.

Court of Civil Appeals of Texas. Fort Worth.

March 23, 1945.

Rehearing Denied April 20, 1945.

Appeal from District Court, Wichita County; H. W. Fillmore, Judge.

Suit under the Workmen's Compensation Act by Lucile H. Hinkle and others to set aside an award of the Industrial Accident Board in favor of Federal Underwriters Exchange. From a judgment granting relief to named plaintiff, defendant appeals.

Reformed and as reformed affirmed.

John T. Gano, of Fort Worth, and Milburn E. Nutt, of Wichita Falls, for appellant.

Napier & Napier, of Wichita Falls, for appellee.

McDONALD, Chief Justice.

This is a workmen's compensation suit. Frank Arnell Hinkle, the employee, was killed on January 24, 1940. He was survived by four brothers and two sisters, all adults. They filed claim with the Industrial Accident Board, and appealed from the ruling of the Board by filing suit in one of the district courts of Wichita County. Upon the first trial judgment was rendered denying recovery to all of the brothers and one of the sisters, on the ground that they were not dependents of the deceased employee. The four brothers and the one sister to whom recovery was denied did not appeal, and judgment became final as to them. The other sister, Lucile Hinkle, appealed from the judgment rendered in her favor because she was awarded only one-sixth of the compensation payable. We reversed the judgment and remanded the cause, holding that she was entitled to all of the compensation or none. Hinkle v. Federal Underwriters Exchange, Tex.Civ.App., 152 S.W.2d 387, writ of error refused for want of merit. We left the judgment undisturbed in so far as it denied a recovery to the brothers and the other sister. Upon a second trial Lucile Hinkle recovered judgment, and the insurer appealed. We reversed the judgment and remanded the cause, for the reasons shown in our opinion. Federal Underwriters Exchange v. Hinkle, Tex.Civ.App., 167 S.W.2d 307, writ of error refused for want of merit.

Upon a favorable verdict of the jury Lucile Hinkle again recovered judgment, and the case is now before us for the third time. During the pendency of the suit Lucile Hinkle married Callie L. Gillman, who became a party to the suit, but since the suit is still carried under the name of Lucile Hinkle we shall, to avoid confusion, refer to her by that name.

The first four points of error of appellant, the insurer, are considered together in its brief, but we shall treat them separately.

Under the first point the question is raised whether there is any evidence to show dependency within the meaning of the statute. Art. 8306, Sec. 8a, Revised Civil Statutes. This same question was raised by the insurer on the former appeals. We held that a jury issue was raised. The evidence is substantially the same in the record now before us, and we remain of the opinion that our views in this respect were correct.

Under the second point of error it is argued that the verdict of the jury in regard to dependency is so against the great weight and preponderance of the evidence that we should reverse the judgment and remand the case for a new trial.

"The mere fact that a verdict is against the preponderance of the evidence will not authorize the Court of Civil Appeals to set it aside, if there is evidence to support it. The appellate court will set aside the verdict and findings of the jury in cases where they are so against such a preponderance of the evidence as to be clearly wrong, show passion or prejudice, or in such obvious conflict with the justice of the case as to render them unconscionable." 3 Tex.Jur. 1097.

Appellee was a single woman until more than two years after the death of her brother. He was older than appellee. She had worked mainly as a housekeeper at weekly wages of $3.50 or $4.00 per week, plus her board and room. Beginning in 1937, and continuing to shortly before his death, the deceased contributed to her about $10.00 per month. She said that she used the money to pay for necessities. She said that she used the money she earned to buy clothes and things that she had to have, and that she used the money her brother gave to her for the same purposes. The last time he gave her any money was in November, 1939, when, appellee testified, he gave money to pay her fare back to Tennessee and some "extra." He died on January 24, 1940. Appellant makes much of the fact that he did not give her money during the months of December and January, relying on the rule, stated in the decisions hereafter cited, that dependency must be determined by the facts that exist at the date of the death of the employee. We do not consider that the failure to give her any money during the two months in question is enough to defeat appellee's claim of dependency, in view of her testimony just mentioned.

Appellant urges us to examine the evidence shown in the statement of facts filed in the former appeal, on the ground that the evidence of appellee there is to the effect that the money her brother gave her in November, 1939, was only enough to pay her fare back to Tennessee. Obviously, it seems to us, we cannot resort to a record of testimony taken on a former trial to determine whether error has been committed on the later trial. The case was tried before a different judge and to a different jury. The testimony taken on the former trial might in a proper case be used for impeachment purposes, or as admissions against interest, but, to be used for such purposes, would have to be introduced in evidence in the later trial. Otherwise, the trial judge, who did not sit in the former trial, would not have the former testimony before him in passing upon the motion for instructed verdict, nor would the jury have such testimony before it in arriving at a verdict. We have been cited to no authority for such practice, and it seems elemental to us that we must test the action of the trial court and the verdict of the jury by the evidence introduced in the later trial.

Appellant relies especially on the late decision of the Supreme Court in Federal Underwriters Exchange v. Hall, 182 S.W.2d 703, and also the decision in Texas Employers Ins. Ass'n v. Arnold, 127 Tex. 245, 92 S.W.2d 1019. The facts in the case before us are quite different from those in the two cases just cited. In the present case the claimant was employed at a meager wage. She testified that she used the money her brother gave her to pay for necessities, and it seems to us that she might well have done so. The following statement of the rule is applicable here:

"It is an accepted rule in compensation cases that partial dependency may exist although the alleged dependent could have subsisted without the labor of the employé, or is not without the necessities of life. The test is: Was the alleged beneficiary relying in whole or in part upon the labors of the deceased for support? Corpus Juris, Workmen's Compensation Acts, p. 61, par. 52. The court charged the jury, in effect, that defendants in error must show that they were dependent, in whole or in part, upon the labors of the deceased for support. Support is a very flexible term and includes something more than the bare necessities of life. It includes also the ordinary comforts and conveniences which are reasonably appropriate to the parties' station in life—such as were actually being enjoyed by them at the time of and prior to their son's death. Rosholt v. Mehus, 3 N.D. 513, 57 N.W. 783, 23 L.R.A. 239; Owens v. State, 6 Okl.Cr. 110, 116 P. 345, 36 L.R.A.,N.S., 633, Ann.Cas. 1913B, 1218. If the parents were dependent, in whole or in part, upon the labors or contributions of the deceased son for such support, they were, we think, dependents within the meaning of the law." Lumbermen's Reciprocal Ass'n v. Warner, Tex. Com.App., 245 S.W. 664, 665.

In the Hall case the employee was a minor who was living with his older sister and her husband. The sister claimed compensation as a dependent. At the time of his death, the sister and her husband were both employed, she at a salary of $90 per month and her husband at a salary of $140 per month. Her younger brother was paying her about $4 per week, and was living at her home. She said that the $4 per week was applied on the boy's laundry, and his work clothes or extra laundry, and to apply on the wages of the girl who helped with the housework. We refer to the opinion for a fuller statement of the facts. In the Arnold case the claimant, a man forty-two years of age, lived in a distant state. During several years when he was disabled from an injury his father assisted him substantially. But for some time before the death of the father the son had been making a comfortable living. The following is the summary of the facts contained in the opinion in the case [127 Tex. 245, 92 S.W.2d 1022]:

"Briefly summarized, these are the facts, as disclosed by the claimant's own testimony: At the date of the death of the employee the claimant was 42 years of age, the owner of a good-sized restaurant, the owner of property of sufficient value to support a loan thereon of $3,000, the owner of a Chrysler automobile, and, in addition, was drawing a salary of $150 per month, besides expenses, as a salesman. At that time he evidently contemplated remarriage, for he was married in Elmira, N. Y., a few days after his father's death.

"These facts, to our minds, lead to but one conclusion, and that is that claimant was not a dependent of his father, who lived hundreds of miles away and earned about $140 per month by laboring 10 hours per day, 5½ days per week."

Appellant also cites Rodriguez v. Texas Employers Ins. Ass'n, Tex.Civ.App., 35 S.W.2d 510, but in that case the jury found that the claimant was not dependent on the employee. The question before the court on appeal was whether the evidence showed dependency as a matter of law—an entirely different question from that before ...