Kelley v. State Soc. Sec. Comm.

• Decision Date: 04 May 1942
• Docket Number: No. 20166.,20166.
• Citation: 161 S.W.2d 661
• Parties: HERBERT LEE KELLEY, RESPONDENT, v. THE STATE SOCIAL SECURITY COMMISSION OF MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

161 S.W.2d 661

HERBERT LEE KELLEY, RESPONDENT, v. THE STATE SOCIAL SECURITY COMMISSION OF MISSOURI, APPELLANT.

No. 20166.

Kansas City Court of Appeals, Missouri.

May 4, 1942.

Appeal from the Circuit Court of Jackson County. — Hon. Albert A. Ridge, Judge.

REVERSED AND REMANDED.

Roy McKittrick and B. Richards Creech for appellant.

(1) The evidence clearly shows that the claimant is not in need. (2) Claimant has reasonable subsistence compatible with decency and health. Sec. 9406, R.S. Mo. 1939; Subsection 6, Sec. 9406, R.S. Mo. 1939; Howlett v. State Soc. Sec. Comm., 149 S.W. (2d) 806. (3) Where there is sufficient evidence to support the award and decision of the Social Security Commission, this court should affirm that award and decision. Sec. 9411, R.S. Mo. 1939; Howlett v. State Soc. Sec. Comm., 149 S.W. (2d) 806; Smith v. State Soc. Sec. Comm., 153 S.W. (2d) 741, 742; Dunnavant v. State Soc. Sec. Comm. of Mo., 150 S.W. (2d) 1103, 1106; Lanahan v. Hydraulic-Press Brick Co., 55 S.W. (2d) 327. (4) The trial court erroneously found in its judgment that there is a budgetary deficiency in the home in which claimant lived. Chapman v. State Soc. Sec. Comm., 147 S.W. (2d) 157, 159; Nichols v. State Soc. Sec. Comm., 156 S.W. (2d) 760, 765; Garrison v. State Soc. Sec. Comm., 157 S.W. (2d) 792, 793, par. 3; Hughes v. State Soc. Sec. Comm., 157 S.W. (2d) 223, 224. (5) The trial court erroneously made a finding of the facts in its judgment on its own motion. Woolley v. Dorl, 93 S.W. (2d) 1098; Ritchie v. Rayville Coal Co., 33 S.W. (2d) 154.

CAVE, J.

This is an appeal from the judgment of the Circuit Court of Jackson County, finding that the claimant is eligible for old age assistance and remanding the cause to the State Social Security Commission "for a hearing according to law."

It appears from the record that respondent, Herbert Lee Kelley, had been receiving old age assistance for about four years, and that he was removed from the pension rolls on June 30, 1940, because, as found by the Commission, he was not in need of public assistance within the meaning of the Social Security Act. Thereafter, respondent made application for old age assistance as required by the Act, and after investigation, his application was denied by the State Administrator, from which denial the respondent appealed to the Commission, and after a hearing before the Commission, the order of the Administrator was affirmed and assistance denied, because the Commission found from the evidence "that the claimant has income, resources, support and maintenance sufficient to provide a reasonable subsistence compatible with decency and health, and is not found to be in need."

From this finding and order of the Commission, the respondent appealed to the Circuit Court of Jackson County, which reversed and remanded the case to the Commission, because as the Court found, "the decision of the Commission is arbitrary and unreasonable in this, that in determining the budgetary deficiency of claimant's family, the Commission did not consider any item of expense for household supplies, nor any item of expense for education or school supplies for the three minor children living in the home in which claimant resides, nor any item of expense for recreation; further, that the amount listed by the Commission as actual expenses for clothing does not include any sum so as to provide clothing for claimant; the need for all such items of expense being shown by the transcript of the record in this case. Therefore, there is insufficient evidence in the record to substantiate the amount of expenses for the maintenance of the family in which claimant resides. Wherefore, the award of the Commission denying applicant old age assistance is not supported by substantial evidence and this cause is remanded to the Commission for a hearing according to law."

From this judgment the Commission perfected its appeal to this court. At the hearing the claimant was ably represented by counsel, who presented the evidence on behalf of the claimant, and cross examined witnesses produced by the Commission, and it appears that the claimant and the Commission were given full opportunity to present all evidence desired. No contention is made, and from reading the record none could be made, that the hearing itself was not held in a fair and impartial way or that the claimant was denied the right to produce any evidence or fact he desired.

It is now the settled law of this State that if there is substantial evidence to support the finding of the Commission then it is not within the province of this court or the circuit court to disturb such finding. [Section 9411, R.S. Mo. 1939; Howlett v. Social Security Commission (Mo.), 149 S.W. (2d) 806; Burgfield v. Social Security Commission, 155 S.W. (2d) 273; Dunnavant v. Social Security Commission, 150 S.W. (2d) 1103; Hughes v. Commission, 157 S.W. 223; Garrison v. Commission, 157 S.W. (2d) 792.]

There is no dispute as to claimant's qualifications for assistance, as to age, residence or property; but it is the contention of the Commission, and it so found, that claimant is not in need because he is being supported in the home of his son in a manner compatible with decency and health. On this issue, the evidence is that claimant has nine children, all adults, and seven of them living in Kansas City, but that his son, Paul Kelley, is the only one contributing to his support. For the past five years, claimant has lived in the home of his son as a member of the family. During part of that time, he was receiving old age assistance, and used it for whatever he desired, but at times would purchase food and coal for the home, and on a few occasions had given his son some money. He did not pay anything for board or lodging. Paul Kelley's family consisted of his wife and three children, ages following: a son sixteen years, a daughter fifteen years, and a son eleven years. Paul Kelley was at the time of the hearing, and for the past eighteen years,...