Ferguson v. Hood

Decision Date12 July 1976
Docket NumberNo. 9765,9765
Citation541 S.W.2d 19
PartiesJames B. FERGUSON, Sr., et al., Claimants-Appellants, v. W. P. HOOD and D. M. Hood, d/b/a D & W Texaco, Employers-Respondents, and American States Insurance Company, Insurer-Respondent.
CourtMissouri Court of Appeals

Benjamin J. Francka, Springfield, for claimants-appellants.

Daniel, Clampett, Ellis, Rittershouse & Dalton, Paul D. Rittershouse, Springfield, for employers-respondents.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

STONE, Presiding Judge.

Claimants-appellants are the parents and siblings of eighteen-year-old Richard Ferguson who, while working in the course of his employment as a service station attendant, was shot and killed during an armed robbery at the station on March 15, 1969. Asserting that they were partial dependents of Richard (§ 287.240, RSMo 1969, V.A.M.S.), claimants instituted this proceeding under the Missouri Workmen's Compensation Law. After a plenary hearing, the referee made extensive findings of fact and rulings of law and entered an award denying compensation to the alleged dependents, which was confirmed upon initial review by the Industrial Commission and thereafter upon judicial review by the circuit court. From that adverse judgment, claimants bring the case to us.

In connection with and in support of his award denying compensation, Referee Moss first recorded his finding 'from all the evidence that claimants herein have failed to prove actual dependency for support, in whole or in part, upon the deceased employee's wages at the time of the employee's injury and death,' and then proceeded to review certain significant evidence, record additional findings of fact, and refer to relevant case law. Upon review, the Industrial Commission found that 'the award of the referee heretofore entered is correct in all respects without exception,' warmly commended 'the proficiency demonstrated by the referee,' and quoted the major portion of the referee's 'decision.' We believe it appropriate to do likewise at this point:

'Claimants . . . concede that the deceased had no total dependents, and the record shows that each of the alleged dependents received a substantial part, if not all, of his or her support from a source other than the deceased employee. Gantner v. Fayette Brick & Tile Company, 236 S.W.2d 415 (Mo.App.1951); Dykes v. Thornton, 282 S.W.2d 451 (Mo.1955). Claimants contend that the record supports a finding that the deceased contributed all, or substantially all of his wages to a 'common fund' used for the support in part of all of the alleged dependents, and insist that they are partial dependents to the extent of 100% and therefore entitled to the entire death benefit, there being no total dependents. Section 287.240(3), RSMo 1969, has been thus construed in numerous cases when the facts indicated the deceased contributed his entire earnings to a 'common fund' for the support of partial dependents. Claimants' excellent brief cites nearly all of such cases. However, I find that the evidence in the instant case does not support a finding that the deceased contributed all or substantially all of his wages to such 'common fund.' The most recent decision on this precise point is Dykes v. Thornton, 302 S.W.2d (304), 313 (Mo.App.1957). In that case the alleged dependent mother testified that her deceased son contributed all of his earnings to a common fund, except money used for shows, skating, gasoline for the family car, meals bought while working on the road, and clothing. The evidence in the instant case is substantially the same, and unlike the Dykes case, the deceased also had his own checking account from which he also obtained funds for his own use for like expenditures.

'I further find that the claimants have failed to prove beyond mere speculation, guesswork and surmise that even a part of the deceased's earnings were in fact used for the support of the family. Otherwise stated, I find that claimants have not proven beyond mere speculation that they were actually dependent upon a part of the deceased's wages for their support. It was stipulated by the attorneys for the parties that the employee's average weekly wage was $74.73 per week. However, this was a theoretical average wage to be used for the purpose of determining the amount of the total death benefit only, since the employee had worked regularly on a full time basis for just two weeks prior to his death. Partial dependency is determined by the proportion of the employee's actual earnings contributed, and not by the proportion of such theoretical earnings contributed. Tracey v. Acme Distributing Company, 236 Mo.App. 981, 160 S.W.2d 469 (1942). The deceased until two weeks prior to his death had worked only part time on an irregular basis and at times not at all. His weekly earnings necessarily varied a great deal. His mother testified that he would, when working, hand her a 'wad' of money which she placed in her billfold. She did not count the money and consequently did not know how much it was. Though she testified that on such occasions he kept two or three dollars for cigarettes, candy, etc., she still was unable to say what his earnings were for the period involved in each occasion. In any event, from time to time the deceased would request varying amounts for like personal expenses and dates with girl friends and his mother would honor his request. A checking account was also maintained in the name of the deceased upon which he would also write the checks for...

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8 cases
  • Hampton v. Big Boy Steel Erection
    • United States
    • Missouri Supreme Court
    • December 9, 2003
    ...University, 543 S.W.2d 525 (Mo.App.1976); Lindquist v. Container Corp. of America, 537 S.W.2d 676 (Mo. App.1976); Ferguson v. Hood, 541 S.W.2d 19 (Mo.App.1976); Griffin v. Evans Elec. Const. Co., 529 S.W.2d 172 (Mo.App.1975); Faries v. ACF Industries, Inc., 531 S.W.2d 93 (Mo.App.1975); Free......
  • Henley v. Tan Co., Inc.
    • United States
    • Missouri Court of Appeals
    • June 21, 2004
    ...with the facts at the time of the employee's injury. Ricks v. H.K. Porter, Inc., 439 S.W.2d 164, 167 (Mo.1969); See Ferguson v. Hood, 541 S.W.2d 19, 22 (Mo.App.1976). The word "dependent" ordinarily means in "need of aid or support," "not self-sustaining." Dykes v. Thornton, 282 S.W.2d 451,......
  • Williams v. City of St. Louis
    • United States
    • Missouri Court of Appeals
    • May 22, 1979
    ...evidence to support it, or unless its findings are clearly contrary to the overwhelming weight of the evidence. Ferguson v. Hood, 541 S.W.2d 19(1) (Mo.App.1976); Webb v. Norbert Markway Const. Co., 522 S.W.2d 611(3) (Mo.App.1975); Roux v. Dugal's Big Star Food Store, 510 S.W.2d 810(2-3) Alt......
  • Heitzler v. Eppenberger, 40291
    • United States
    • Missouri Court of Appeals
    • February 5, 1980
    ...findings and conclusions. But this is not our function in cases such as this, nor was it that of the circuit court. Ferguson v. Hood, 541 S.W.2d 19, 21-22(1) (Mo.App.1976). Here the only issue is whether there is substantial and competent evidence to support the findings of the commission. ......
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