Holmes v. Mack International Truck Co.

• Court: Kansas Court of Appeals
• Writing for the Court: BARNETT, C.
• Citation: Holmes v. Mack International Truck Co., 224 Mo.App. 427, 28 S.W.2d 446 (Kan. App. 1930)
• Decision Date: 05 May 1930
• Parties: HARRY HOLMES, GUARDIAN AND CURATOR, ETC., APPELLANT, v. MACK INTERNATIONAL TRUST COMPANY, ET AL., RESPONDENTS

28 S.W.2d 446

224 Mo.App. 427

HARRY HOLMES, GUARDIAN AND CURATOR, ETC., APPELLANT, v. MACK INTERNATIONAL TRUST COMPANY, ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 5, 1930

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

AFFIRMED.

Judgment affirmed.

Walter H. Maloney and Carroll W. Berry for appellant.

Walter A. Raymond and Shughart & Johnson for respondents.

BARNETT C. Boyer, C., concurs. Bland and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

BARNETT, C.

This appeal was taken by the guardian of the minor children of Bert T. McMullen, deceased, from the order of the circuit court affirming an award of the Workmen's Compensation Commission. The commission made an award of $ 20 per week for 429 weeks and $ 2.86 for one week, or until death or remarriage of Ada McMullen, widow of Bert T. McMullen, who was accidently killed while acting within the scope of his employment, with remainder to John Edward and Hubert McMullen, as their rights and interests might appear. The evidence showed that deceased was the father of the two minors by a former marriage, but that he had procured a divorce several years prior to his death and had then married the respondent, Ada McMullen. The children lived with the deceased and their stepmother and were supported by their father in his lifetime. After the father's death the divorced wife took the custody of the children. Under the award the minor children will receive nothing unless Ada McMullen dies or remarries before it is paid in full.

OPINION.

Appellant claims that as to these minor children there was no surviving dependent parent and no surviving step-parent, because the relation of step-parent was terminated at the father's death and therefore the use of the word "step-parent" in the Workmen's Compensation Act is meaningless. Section 21 of the act provides for compensation to dependents and clause D is as follows:

"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 and any death benefit shall be payable 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. Provided, that on the death or remarriage of a widow, the death benefit shall cease unless there be other dependents entitled to any unpaid remainder of such death benefit under this act.

"(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 case there is more than one child thus dependent, the death benefit shall be divided among them in such proportion as may be determined by the commission after considering their ages and other facts bearing on such dependency. In all other cases questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury, and in such other cases, if there is more than one person wholly dependent the death benefit shall be divided equally among...