Glaze v. Hart

• Decision Date: 05 January 1931
• Citation: 36 S.W.2d 684,225 Mo.App. 1205
• Parties: MILDRED LUCILLE GLAZE, RESPONDENT, v. B. F. HART AND TRAVELERS INSURANCE COMPANY, APPELLANTS
• Court: Kansas Court of Appeals

36 S.W.2d 684

225 Mo.App. 1205

MILDRED LUCILLE GLAZE, RESPONDENT, v. B. F. HART AND TRAVELERS INSURANCE COMPANY, APPELLANTS

Court of Appeals of Missouri, Kansas City

January 5, 1931

Appeal from Circuit Court of Jackson County.--Hon. T. J. Madden Special Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

McCollum & Schwind for respondent.

Mosman Rogers & Buzard for appellants.

CAMPBELL C. Boyer, C., concurs. Trimble, P. J., absent.

OPINION

CAMPBELL, C.

This is an action under the Missouri Workmen's Compensation Act.

The record reveals that on the 2nd day of July, 1928, Floyd Glaze, father of claimant, received an injury while in the employ of B. F. Hart, in consequence of which he died two days later. Claimant, four years of age, is a child of said employee and his wife, Fern.

Employee and his said wife separated in May, 1927, and were, on October 5, 1927, upon her application, divorced by a decree of the district court of Gray county, Texas, which decree by its terms provides that the mother shall have the care, custody and education of claimant. Claimant's mother testified the decedent did not, after the rendition of the divorce decree, contribute anything to the support of herself or child; that she did not expect to receive anything from him; that at or about the time of the separation her husband had conveyed to her some property in Kansas City, and that it was agreed she was to have the full custody and entire support of claimant; that in December, 1928, she married a Mr. Lackey who has since supported herself and child.

Commissioner Shaw heard the cause on February 27, 1929, found total dependency, and awarded claimant compensation at the rate of twenty dollars per week for 366.1 weeks. Upon defendants application that finding and award was reviewed by the full commission who, on the 2nd day of May, 1929, modified and reversed the same and found the facts to be as above stated and that claimant was not a dependent of Floyd Glaze at the time of his death and made an award denying compensation. Claimant appealed to the circuit court, which court found and adjudged that the facts found by the commission were supported by competent evidence but that said findings of fact did not support the final award by the full commission under date of May 2, 1929; that upon the facts found by the commission the claimant is entitled to full compensation as provided in the award by said Orin H. Shaw under date of February 27, 1929, and thereupon rendered judgment setting aside the award of the full commission and awarding judgment in plaintiff's behalf in the sum of twenty dollars per week for 366.1 weeks. From that judgment the appeal is prosecuted.

The plaintiff was not living with the employee at the time of the fatal injury nor had she received support of any kind from him since the decree of divorce. The record is silent as to whether the employee furnished any support after the separation and before the divorce. The custody and control of plaintiff had been awarded to the mother by the decree of divorce and she had assumed the duty thus imposed, had received a conveyance of property, presumably a property settlement, and thereafter was the only person who furnished support to plaintiff.

At the trial the mother testified that the employee had not, since the decree of divorce, contributed food, clothing or money to the support of plaintiff, and that she did not expect contribution from him either for herself or child.

While the Workmen's Compensation Act should be construed broadly in order to carry out its manifest purpose, its plain and unequivocal terms cannot be extended by judicial construction beyond their reasonable import, and the fact must be constantly borne in mind that the right of compensation does not exist except in the instances and under the circumstances provided in the act.

The legislative provision to be construed in the determination of the question presented is section 21, article D, Laws of Missouri, 1927, page 503, as follows:

"(d) The word 'dependent' as used in this act 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 the injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee in the following order . . . to-wit:

"1. A wife upon a husband legally liable for her support, and a husband mentally or physically incapacitated from wage earning upon a wife. . . .

"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. . . . In all other cases questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury." . . .

So far as we are advised the question is one of first impression in Missouri. Appellate courts in other states, however, have passed upon similar facts, and while those holdings are not conclusive on this court, they are persuasive.

In McGarry v. Industrial Commission, 222 P. 592, the Supreme Court of Utah, the statute of which state is in legal effect the same as that of Missouri, considered a case in which the father of the plaintiff received injuries resulting in his death, it being admitted the case came within the Utah Industrial Act, and in which the court said "the sole question to be determined is one of dependency," and the court states the fact to be that the plaintiff was born June, 1915; that the employee lived with and supported his wife and said child for about seven months thereafter, at which time he deserted and abandoned them, assumed a fictitious name by which he was known to his employers; that the wife and child did not know of his whereabouts until the happening of the injury which resulted in his death; that in November, 1919, plaintiff's mother procured a divorce in Bingham, Idaho. The commission awarded compensation upon the basis that plaintiff was wholly dependent for support upon his deceased father. The Supreme Court of Utah set aside the finding saying: "It is not necessary to review the cases in detail. They support the contention that under the facts disclosed by the record no dependency is shown by presumption or otherwise. For that reason the award as made should be annulled and set aside." The case came again before the court, 232 P. 1090, and the court said: "The primary duty rested upon the parents and to the extent that the mother was unable to support the child, after providing herself with adequate support, the child sustained a distinct loss in the death of his father. The amount of the loss, being dependent upon the amount the mother is able to contribute, is a matter within the jurisdiction of the commission to determine in accordance with the facts."

Two of the judges in a concurring opinion said: "Ordinarily therefore an infant of tender years, like the applicant in the instant case, can be presumed to be wholly dependent upon the parent. For the reason, however, that the custody, nurture, and control of the infant applicant in this case was awarded to the mother by a court of competent jurisdiction, before the death of the father, that presumption cannot prevail. The question of dependency, as pointed out by my associate, is therefore one of fact to be determined by the commission upon competent evidence being submitted to it." The evidence revealed the mother was unable to support the child and had "obtained assistance from the county to the extent of many hundreds of dollars." The award of the commission was set aside and annulled because of procedural errors.

In Rohan Motor Company v. Industrial Commission of Wisconsin, 205 N.W. 930, the Supreme Court of Wisconsin had before it a case in which an employee received an injury resulting in death, leaving a child and divorced wife. The employee had been adjudged to make a weekly payment for the support of the minor child, the care and custody of which had been awarded to the mother. The statute of Wisconsin is in effect, so far as the pending question is concerned, the same as ours. The court held the question of dependency, the facts being undisputed, was one of law as distinguished from one of fact, and that under the undisputed facts, as above stated, the child was not a total dependent but was a partial dependent.

In State Industrial Accident Commission v. Downton, 109 A. 63, the father and mother of the applicants had been divorced. There was "no allowance of permanent alimony." The custody of the children was awarded to the mother. The father thereafter frequently saw the children, gave them some clothing and small sums of money. The commission made an award in favor of the children for partial dependency. The Supreme Court of Maryland reversed the judgment and approved the holding in other cases to the effect that the legal obligation of the father to support the children did not determine the question of dependency "but that such legal obligation must be coupled with a reasonable probability that such obligation will be fulfilled."

In Miller case, 138 N.E. 254, the Supreme Court of Massachusetts considered a case in which the employee came to his death as the result of an injury. His wife, Etta, had obtained a decree of divorce, and the custody of the minor child, Alice was awarded to her, and the employee ordered to pay three dollars per week for the support of the child. He never made any payment. The Industrial Accident Board...