Henderson v. National Bearing Division of American Brake Shoe Co.

• Decision Date: 20 April 1954
• Docket Number: No. 28785,28785
• Citation: 267 S.W.2d 349
• Parties: HENDERSON v. NATIONAL BEARING DIVISION OF AMERICAN BRAKE SHOE CO.
• Court: Missouri Court of Appeals

Page 349

267 S.W.2d 349

HENDERSON v. NATIONAL BEARING DIVISION OF AMERICAN BRAKE SHOE CO.

No. 28785.

St. Louis Court of Appeals, Missouri.

April 20, 1954.

Rehearing Denied May 17, 1954.

G. W. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellant.

Samuel J. Goldenhersh, John D. Gallagher, Goldenhersh & Goldenhersh, St. Louis, for respondent.

WOLFE, Commissioner.

This action was originally brought by Judge Hibbler before the Division of Workmen's Compensation. He sought compensation for disability arising out of an occupational disease contracted while he was in the employ of the National Bearing Division of American Brake Shoe Company. Before the claim was heard Hibbler died, from a cause not connected with the disease, and his minor son, by guardian, was substituted as the claimant. From an award of $6,100.01 to the claimant the employer appealed to the circuit court where the award was affirmed. From the judgment of the circuit court affirming the award the employer prosecutes this appeal.

The facts of the case are that Judge Hibbler worked as a janitor for the American Brake Shoe Company. In the course of his employment with it, and because of it, he became ill from lead poisoning on March 19, 1951. A report of this was duly made and Hibbler's claim was filed before the Workmen's Compensation Division on September 22, 1951. On May 18, 1952, Hibbler died of a cause not connected with lead poisoning. At the hearing before the referee there was evidence that Hibbler had been living with a woman whom he held out to be his wife. Shortly after he died she had secured refusal of letters of administration from the probate court, as Hibbler's widow. She testified before the referee that she had never been married to Hibbler. She knew Judge Henderson, sometimes known as Jewell Hibbler, the present claimant in this case, as Hibbler's son from the time the boy was about five years of age until the time of the hearing when he was sixteen.

Louis Henderson testified that she was the mother of the boy and that Judge Hibbler was his father. She had never been married to Judge Hibbler but Hibbler recognized the child as his son and the boy was known as Judge Henderson and as Jewell Hibbler. His birth certificate offered in evidence gave his name as Judge Henderson. She testified that Hibbler gave monthly sums for the boy's support and bought clothing for him. The boy himself testified that Judge Hibbler frequently took him to places of entertainment, bought him clothing, and introduced him as his son. He said that people called him 'Little Judge.'

The finding of the commission is as follows:

'We find from all the evidence that the employee, Judge Hibbler, now deceased, contracted an occupational disease, the onset of which was March 19, 1951, arising out of and in the course of his employment with National Bearing Division of American Brake Shoe Company, resulting in 65% permanent partial disability of his body as a whole (65% of 400 weeks).

'We further find that said employee on May 18, 1952, died from causes unrelated to the above-mentioned injury, and left surviving him at the time of his death his minor son. Judge Henderson (also known as Jewell Hibbler) as his sole surviving dependent, who is substituted as claimant in the name of Louise Henderson, his guardian.

'We further find, in accordance with the stipulation between the parties to this cause, that employee, prior to his death on May 18, 1952, became and was 65% permanently and partially disabled (body as a whole) as the result of his occupational disease, lead poisoning.

'We further find that employer's liability for said disability had, therefore, accrued and become payable at the time of employee's death; that the amount of compensation payable employee for such disability is set out by statute (Sec. 287.190, R.S.Mo.1949 [V.A.M.S.]); that, having agreed to the exact nature and extent of disability, the cause of the disability and the average weekly wage of the employee, there was no dispute between the parties as to the compensation payable under the Missouri Workmen's Compensation Law, and, therefore, no dispute as to liability for compensation to be determined upon hearing and by award as provided by Sections 287.450, 287.460, 287.480, , R.S.Mo.1949 [V.A.M.S.]. Employer's liability, therefore, had accrued and became payable at the time of this employee's death.

'We further find that Judge Henderson, also known as Jewell Hibbler, was a surviving dependent of employee and is, therefore entitled to the unpaid accrued balance and unpaid unaccrued balance of compensation for such disability. (Section 287.230, R.S.Mo.1949 [V.A.M.S.]).

'Affirming on review award dated August 15, 1952.'

This finding followed an award of compensation payable for 260 weeks at $25 a week, totaling $6,500, less a credit of $399.99, which had been paid by the employer to Judge Hibbler, leaving a balance of $6,100.01.

It is asserted that the issue of dependency was ignored by the commission but this does not appear to be supported by the record as there was a finding that the employee left surviving him 'at the time of his death his minor son, Judge Henderson (also known as Jewell Hibbler) as his sole surviving dependent'. The fact that the claimant is an illegitimate child does not bar him from claiming dependency, Section 287.240 RSMo 1949, V.A.M.S., and there was ample proof to support the finding that he was the sole dependent of Hibbler.

The point most seriously urged is that the commission could not properly award to the dependent any amount in excess of that which could have been collected by the employee prior to his death. In other words, the employer contends that the death of Hibbler terminated all liability for payments beyond the time of his death and that the only sum which the dependent can collect is $25 a week from the date of the onset of the disability up to the time of death. A determination of this point rests upon the construction of Section 287.230 RSMo 1949, V.A.M.S., which is as follows:

'1. The death of the injured employee shall not affect the liability of the employer to furnish compensation as in this chapter provided, so far as such liability has accrued and become payable at the time of the death, and any accrued and unpaid compensation due the employee shall be paid to his defendants without administration, or if there be no dependents, to his personal representative or other persons entitled thereto, but such death shall be deemed to be the termination of the disability.

'2. Where an employee is entitled to compensation under this chapter for an injury received and death ensues for any cause not resulting from the injury for which he was entitled to compensation, payments of the unpaid unaccrued balance for such injury shall cease and all liability therefor shall terminate unless there be surviving dependents at the time of such death.'

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