Gantner v. Fayette Brick & Tile Co.

• Decision Date: 08 January 1951
• Docket Number: No. 21457,21457
• Citation: 236 S.W.2d 415
• Parties: GANTNER, Executor, v. FAYETTE BRICK & TILE CO. et al.
• Court: Missouri Court of Appeals

Page 415

236 S.W.2d 415

GANTNER, Executor, v. FAYETTE BRICK & TILE CO. et al.

No. 21457.

Kansas City Court of Appeals, Missouri.

Jan. 8, 1951.

Daniel C. Rogers, Fayette, for appellant.

Kitt & Eubanks, and Randall R. Kitt, all of Chillicothe, William L. Harrison, Kansas City, for respondents.

CAVE, Judge.

This is an appeal from the judgment of the circuit court of Howard County modifying an award of the Industrial Commission. The commission found that Henry L. Gantner was a son of Joseph F. Gantner, claimant; that Henry was killed in an accident while an employee of the Fayette Brick and Tile Company and that Joseph F. Gantner 'was totally dependent on said employee at the time of employee's death.' One commissioner dissented from the finding of 'total dependency' because the evidence did not support such finding. After the appeal was lodged in this court Joseph F. Gantner died and the cause was revived in the name of Philip J. Gantner, executor.

The controverted issue is whether Joseph F. Gantner was a total or a partial dependent of his deceased son. A majority of the commission found that he was a total dependent, but the circuit court found that he was a partial dependent and modified the award accordingly.

The facts are undisputed. Joseph F. Gantner was 85 years of age and practically blind at the date of the hearing. In 1908 he had organized the Fayette Brick and Tile Company, and for years had owned 100 shares of the common stock; his son Henry owned 250 shares, and other members of his family owned a few shares. Joseph had been president of the company until about three years before his son's death. There had been no dividends paid on the stock for many years and any small profits were used for financing the plant. The record justifies the conclusion that the plant was not a profitable enterprise. Joseph owned a home in Fayette and for a number of years he and Henry had lived together, 'batched.' Henry had never married, and was 58 years of age at the time of his death. About three years before Henry's death the home was sold and Joseph received $2600, after the payment of the mortgage. Concerning his disposition of this money, Joseph testified:

'Q. What did you do with your money? A. Well, I turned it over to the brickyard and tried to start it again. * * * I put it in the brickyard--the brick plant, trying to get it started again after it burned out, we had no money to start with, and right away we bought lumber and started that plant up again.

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'Q. And when you put this $2600.00 or $2700.00 in there, did you acquire any more stock at that time? A. No--I loaned that to Henry.

'Q. You loaned that to Henry, is that right? A. Yes, I trusted him to do the best he could with it.

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'Q. Isn't it a fact, Mr. Gantner, that this twenty-six or twenty-seven hundred dollars that you gave to Henry at that time, wasn't that a loan to him? A. No--I never even got a note or anything.

'Q. How did you consider it? A. I just let him have it, to try to start the plant, that is what I thought about it.

'Q. Well, this money that he gave you from time to time, wasn't that in re-payment of that loan? A. Well, it was supposed to be.'

After the sale of the home Henry lived in an office at the brick plant and Joseph went to live with his daughter in Jennings, Missouri, and agreed to pay her about $30 a month for room and board, but did not always do so. He was living part of the time with his son Philip, who made no charge for room and board, and who contributed some money 'once in a while, but very little.' Claimant testified that Henry sent him $15 or $20 a month and paid an insurance premium of $12 a month; that he, claimant, had been receiving $22.21 a month from Federal Social Security for a number of years prior to Henry's death and would continue to receive that amount the remainder of his life; that he and Henry had discussed the advisability of building additional rooms at the brick plant so that they could live together again, but nothing had been done to accomplish that purpose.

Since the facts are undisputed, the question of the award to be entered, in the light of the facts, is one of law in which event the conclusion of the commission either way upon the question will not be binding on this court. Masters v. Southwestern Greyhound Lines, Inc., Mo.App., 205 S.W.2d 882; Taucher v. Quality Dairy Company, Mo.App., 96 S.W.2d 658, 660; Kristanik v. Chevrolet Motor Company, 335 Mo. 60, 70 S.W.2d 890, 894; Hassel v. C. J. Reineke Lumber Co., Mo.App., 54 S.W.2d 758; Gillmore v. Ring Const. Co., 227 Mo.App. 1217, 61 S.W.2d 764.

Sec. 3709(d), R.S.1949, Sec. 287.240, subd. d, of the compensation act, defines the word 'dependent' 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.' Under the evidence there can be no question but that the father was a 'dependent' of Henry. But was he a total or a partial dependent? This section further provides that certain designated persons, i. e., the wife and children, under certain conditions and circumstances, shall be conclusively presumed to be total dependents, but 'in all other cases questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury, * * *.' That is the provision which must control in this case, because claimant does not come within the classification of those conclusively presumed to be total dependents.

In Ash v. Modern Sand and Gravel Company, 234 Mo.App. 1195, 122 S.W.2d 45, 48, the court said: 'The word 'dependent' ordinarily means the need of aid or support; not self-sustaining. A dependent person is one who has not the means of his own to support himself. A total dependent is one who has no means whatever to support himself. A partial dependent is one who has some means, but not sufficient for his support.' See also, Glaze v. Hart, 225 Mo.App. 1205, 36 S.W.2d 684, 688.

In 71 C.J., Par. 273, p. 531, the general rule as to total or partial dependency, is stated as follows: 'It is generally held that one is not totally dependent where a substantial part of the support comes from another source; but courts will not deprive applicants of the rights accorded total dependents merely because of minor considerations or benefits which do not substantially affect or modify the status of the applicants toward the deceased employee.'

Applying this rule to the evidence in the present case, it would seem clear that the father was not totally dependent on his son for support. The undisputed evidence is...