Gendron v. Dwight Chapin & Co.

• Decision Date: 07 April 1931
• Citation: 37 S.W.2d 486,225 Mo.App. 466
• Parties: LEXON GENDRON, ADMINISTRATOR OF THE ESTATE OF SILAS L. GENDRON, DECEASED, HELEN GENDRON, GUARDIAN OF VAUGHN AND ILEEN GENDRON, DEPENDENTS, RESPONDENTS, v. DWIGHT CHAPIN & CO., EMPLOYER, NEW AMSTERDAM CASUALTY CO., INSURER, APPELLANTS
• Court: Missouri Court of Appeals

37 S.W.2d 486

225 Mo.App. 466

LEXON GENDRON, ADMINISTRATOR OF THE ESTATE OF SILAS L. GENDRON, DECEASED, HELEN GENDRON, GUARDIAN OF VAUGHN AND ILEEN GENDRON, DEPENDENTS, RESPONDENTS, v. DWIGHT CHAPIN & CO., EMPLOYER, NEW AMSTERDAM CASUALTY CO., INSURER, APPELLANTS

Court of Appeals of Missouri, St. Louis

April 7, 1931

Appeal from the Circuit Court of Jefferson County.--Hon. E. M Dearing, Judge.

AFFIRMED.

Judgment affirmed.

Morrison Nugent, Wylder & Berger for appellants.

(1) The Circuit Court should have reversed the final award of the Missouri Workmen's Compensation Commission because said award is based on an incorrect interpretation of the Missouri Workmen's Compensation Act. Section 21 (d), Missouri Workmen's Compensation Act, being Section 3319, Revised Statutes 1929. Glaze v. Hart, Kansas City Court of Appeals, No. 17070, (not yet reported); In re Carroll, 116 N.E. 844 (Ind.); Moran's Case, 125 N.E 157 (Mass.); Miller's Case, 138 N.E. 254 (Mass.); McGarry v. Industrial Commission of Utah, 222 P. 592 (Utah); Lloyd-McAlpine Logging Co. v. Whitefish, 206 N.W. 914 (Wis.); Ramey v. Portsmouth By-Product Coke Co., 27 S.W.2d 415 (Ky.); Ocean Accident & Guarantee Co. v. Industrial Commission of Utah, 255 P. 598 (Ariz.); Holmes v. Mack International Truck Co., 28 S.W.2d 446 (Mo.); Schwartz v. Gerding & Aumann Bros., 121 N.E. 89 (Ind.); State Industrial Accident Comm. v. Downton, 109 A. 63 (Md.); Rohan Motor Co. v. Industrial Comm., 205 N.W. 930 (Wis.). (2) There was no finding of fact by the commission to the effect that either of claimants was living with his father at the time of the father's death, nor any finding of fact upon which it could be ruled as a matter of law that either of claimants was living with the father; therefore the judgment should be reversed. Further there is not sufficient evidence in the record to ever warrant such finding, and, therefore, the judgment should be reversed without remanding. In re Nelson, 105 N.E. 357 (Mass.); Pacific Gold Dredging Co. v. Industrial Accident Comm., 194 P. 1 (Cal.); Lloyd-McAlpine Logging Co. v. Whitefish, 206 N.W. 914 (Wis.); Finn v. Detroit, Mt. C. & M. Ry., 155 N.W. 721 (Mich.); In re Gallagher, 106 N.E. 558 (Mass.); In re Gorski, 116 N.E. 811 (Mass.); In re Mooradjian, 118 N.E. 951 (Mass.); Breakey's Case, 126 N.E. 769 (Mass.); Hassan's Case, 134 N.E. 260 (Mass.); Stojic v. Industrial Comm., 205 N.W. 795 (Wis.); Harris v. Louisiana Oil Refining Corp., 127 So. 40 (La.); Northwestern Iron Co. v. Industrial Comm., 142 N.W. 271 (Wis). (3) There is no finding of fact by the commission to the effect that actual dependency existed and, furthermore, there is no evidence in the record upon which such finding of fact could ever be warranted; therefore, the judgment should be simply reversed without remanding. Glaze v. Hart, Kansas City Court of Appeals, No. 17070 (not yet reported); Ocean Accid. & Guarantee Co. v. Industrial Comm., 269 P. 77 (Ariz.); State Industrial Accid. Comm. v. Downton, 109 A. 63 (Md.); Blanton v. Wheeler & Howes Co., 99 A. 494 (Conn.); McDonald v. Atlantic & Pacific Tea Co., 111 A. 65 (Conn.); Atwood v. Conn. Light & Power Co., 112 A. 269 (Conn.); Driscoll v. Jewell Belting Co., 114 A. 109 (Conn.); 28 Ruling Case Law, p. 773, sec. 67; Shaw Co. v. Palmatory, 105 A. 417 (Del.); Richardson Sand Co. v. Industrial Comm., 129 N.E. 751 (Ill.); Chicago, Wilmington & Franklin Coal Co. v. Industrial Comm., 135 N.E. 784 (Ill.); Imperial Brass Mfg. Co. v. Industrial Comm., 137 N.E. 411 (Ill.); Smyth Co. v. Industrial Comm., 137 N.E. 519 (Ill.); In re Carroll, 116 N.E. 844 (Ind.); Tirre v. Bush Terminal Co., 172 A.D. 386 (N.Y.); Jackson v. Erie R. R. Co., 86 N.J. L. 550 (N.J.); Schwartz v. Gerding & Aumann Bros., 121 N.E. 89 (Ind.); Hassan's Case, 134 N.E. 260 (Mass.); Roberts v. Whaley, 158 N.W. 209 (Mich.); Stojic v. Industrial Comm., 205 N.W. 795 (Wis.); Hoffman v. Van Benthugsen, 185 N.Y.S. 539 (N.Y.); Owl Drug Co. v. Industrial Accid. Comm., 234 P. 921 (Cal.); Sweet v. Sherwood Ice Co., 100 A. 316 (Del.); Wasson Coal Co. v. Industrial Comm., 143 N.E. 584 (Ill.); Colwell v. Bedford Stone & Construction Co., 126 N.E. 439 (Ind.); Hammill v. Pennsylvania R. R. Co., 87 N.J. L. 388 (N.J.); Gonzales v. Chino Copper Co., 222 P. 903 (N. Mex.); Weliska's Case, 131 A. 860 (Me.); Lloyd-McAlpine Logging Co. v. Whitefish, 206 N.W. 914 (Wis.); Milton v. Long-Bell Lbr. Co., 115 So. 582 (La.).

Albert S. Ennis for respondent, Helen Gendron, guardian.

HAID, P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

This is an appeal from a judgment of the circuit court affirming an award of the Missouri Compensation Commission in favor of the guardian of two minor children of a deceased employee, Silas L. Gendron, of Dwight, Chapin & Co.

The sole question raised on the appeal is that the commission and the circuit court erred in making an award to the guardian, in that error was committed in the interpretation of Section 21 (d) of the Workmen's Compensation Act (Section 3319 (d) of the Revised Statutes 1929).

That subdivision provides that "the word 'dependent' as used in this chapter shall be construed 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 injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee in the following order and any death benefit shall be payable in the following order, to-wit:

1. A wife upon a husband legally liable for her support. . . . 2. A natural, posthumous, or adopted child or children, whether legitimate or illegitimate, under the age of eighteen years, or over that age if physically or mentally incapacitated from wage earning, upon the parent with whom he is living at the time of the death of such parent, there being no surviving dependent parent or stepparent . . . "

The findings of fact of the commission concerning which no question is made, are as follows:

That on October 29, 1929, the employee sustained a personal injury by accident arising out of and in the course of his employment, the same resulting on his death on same date. That on September 8, 1917, deceased was married, three children being born of this marriage, two of which were living at the time of his injury and death, namely Ileen Gendron, age eight, and Vaughn Gendron, age ten.

On or about March 1, 1923, the deceased and his wife separated, and on September 14, 1929, Helen Gendron, wife of deceased was granted a divorce, the same giving to her the care and custody of the above named children. Vaughn Gendron had been living with the mother since the separation in 1923, but Ileen Gendron, had been living with the deceased's parents since she was about nine months old, the reason therefor being that the mother was unable to support both children. At the time of deceased's injury, and for a short time prior to said injury, he had been living with his parents and thus he and the child, Ileen, were living under the same roof. The evidence is not clear as to whether he had been contributing anything to said child's support, but there is no question that he had not contributed anything to Vaughn Gendron's support since the separation in 1923.

In its conclusions of law the commission held, in effect, that the provision that the child must be living with the parent at the time of his death in order for the presumption of dependency to be effective, applied only to a child or children over eighteen years of age, physically or mentally incapacitated from wage earning. It bases this upon the theory of the father's legal liability to support the children and that it would be a harsh rule to interpret the statute to mean that, although a father, due to his own wrong, has deserted his wife and minor children, the children could not recover compensation because he was not living with or supporting said children.

We quite agree with the commission that it seems harsh and unfair to deprive needy children of the benefits that would ordinarily be theirs under the compensation act, simply because, through no fault of theirs, a parent has deserted them and has not actually contributed to their support. However, if that is the result of the meaning of the statute we are powerless to award the relief which right and justice would seem to dictate. These are things for the Legislature to consider and not for us.

In construing the act we are bound to ascertain and give effect to the intention of the Legislature as expressed in the statute, and where the meaning of the language used is plain it must be given effect by the courts (Betts v. Kansas City Sou. Ry. Co., 314 Mo. 390, 284 S.W. 455, 461; Greer v. Ry. Co., 286 Mo. 523, 228 S.W. 454; Sleyster v. E. Donzelot & Son (Mo. App.), 25 S.W.2d 147) and this without regard to the results of the construction or the wisdom of the law as thus construed ( State ex rel. v. Wilder, 206 Mo. 541, 105 S.W. 272), and we have no right, by construction, to substitute any ideas concerning legislative intent contrary to those unmistakably expressed in the legislative words. [Clark v. Railroad Co., 219 Mo. 524, 118 S.W. 40.]

It will be observed that so far as a wife is concerned, she is entitled to compensation if the husband was legally liable for her support although, as a matter of fact, he had not given her that support (Cotter v. Valentine Coal Co. (Mo. App.), 14 S.W.2d 660; Woods v. American Coal & Ice Co., Mo. App., 25 S.W.2d 144), but not so as to children either those under eighteen years of age nor those over that age who were incapacitated.

If it was intended that there should be a different rule as between the two classes of children, the Legislature would undoubtedly have used...