Kemmerling v. Karl Koch Erecting Co.

Decision Date04 January 1936
Docket Number34107
Citation89 S.W.2d 674,338 Mo. 252
PartiesJoe Kemmerling et al. v. Karl Koch Erecting Company, Inc., and American Mutual Liability Insurance Company, Appellants
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. Clyde Beck, Judge.

Reversed and remanded (with directions).

Wm R. Schneider for appellants.

(1) The findings of fact and award of the commission are sustained by the evidence and reasonable inferences to be drawn therefrom and therefore should not be disturbed on appeal. Decker v. Raymond Concrete Pile Co., 82 S.W.2d 267; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 4 S.W.2d 604; Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805 68 S.W.2d 719. (2) The burden is on the claimants to prove their case in all its parts by a preponderance of the evidence. Kemper v. Gluck, 39 S.W.2d 330, 327 Mo 733; Weiler v. Peerless White Lime Co., 64 S.W.2d 125. (3) The Workmen's Compensation Commissioners have the right to pass upon the credibility of the witnesses and to believe or disbelieve their testimony. They are the sole judges of the facts except where the evidence is scientific or technical and uncontradicted. Gessler v. Tobacco Co., 54 S.W.2d 806; Miliato v. Candy Co., 54 S.W.2d 779; Darghe v. Blackburn Const. Co., 53 S.W.2d 1088; Schneider on Workmen's Compensation (2 Ed.), sec. 520, p. 1794; Kaiser v. Merry, Inc., 79 S.W.2d 474; Buchanan v. Nicozisis, 78 S.W.2d 492. (4) Appellate courts consider only evidence most favorable in support of the award of the Workmen's Compensation Commission, together with all reasonable inferences that may be drawn therefrom to support the conclusions of the commission, and the courts will disregard any unfavorable testimony or references where such contradict evidence and inferences which support the conclusion of the commission. Jones v. Century Coal Co., 46 S.W.2d 196; Schulte v. Grand Tea & Coffee Co., 43 S.W.2d 832; Miliato v. Candy Co., 54 S.W.2d 779; Cuchi v. Prendergast & Son, 72 S.W.2d 136; Noto v. Hemp & Co., 83 S.W.2d 136; Kaiser v. Merry, Inc., 79 S.W.2d 474; Torrey v. Industrial Acc. Comm., 22 P.2d 525; Snavely v. Delmar Hotel Co., 84 S.W.2d 188. (5) The claimants were not dependents of the deceased as that term is defined by the Missouri Workmen's Compensation Act and the decisions of the courts. Sec. 3319b, R. S. 1929; Glase v. Hart, 36 S.W.2d 687; 2 Schneider on Workmen's Compensation (2 Ed.), pp. 1838, 1839, 1840.

Foristel, Mudd, Blair & Habenicht for respondents.

(1) Where the evidence before the commission is all one way, the commission may not disregard the evidence and make an award in direct conflict with and in opposition to the evidence. Great Western Power Co. v. Industrial Acc. Comm., 70 Cal. 180; Herrick's case, 217 Mass. 111; Aetna Inv. Co. v. Landscape Co., 227 Mo.App. 23; Thrasher v. Greene County, 105 Mo. 254; Snorgrass v. Packing Co., 83 S.W.2d 226; Kristanik v. Motor Co., 70 S.W.2d 890. (2) The declarations and admissions of Kate Ostmann, as testified to by Kettelcamp, whatever effect they might have as against her as a claimant, were incompetent and no evidence as against other claimants and insufficient to sustain the award as against them. In re Largue, 198 Mo.App. 261; Eaton v. Cates, 175 S.W. 950; Wood v. Carpenter, 166 Mo. 485; 22 C. J. 349, sec. 102, sec. 403-B, pp. 350-1; 2 Jones on Evidence (2 Ed.), sec. 938, p. 1730; German Church v. Reith, 327 Mo. 1098. (3) The claimants were partial dependents upon the deceased. Sec. 3319(d), R. S. 1929; Sweeney v. Tire Stores Co., 227 Mo.App. 93; Schaffer v. Williams Bros., 44 S.W.2d 185; Texas Emp. Ins. Assn. v. Arnold, 62 S.W.2d 609.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION
WESTHUES

Respondents filed a claim before the Missouri Compensation Commission seeking an award for the death of Henry Kemmerling. The commission made an award of no compensation. Respondents appealed and the circuit court reversed the order of commission. Appellants appealed from the judgment of the circuit court. This being a death claim and the amount in dispute exceeding $ 7500, the appellate jurisdiction is in this court.

The sole controverted question before the Compensation Commission was, whether the claimants, respondents here, were dependents of Henry Kemmerling, deceased. Henry Kemmerling had been married three times. He had one son, who was of age and was not dependent upon his father. This son made no claim. Kemmerling was divorced and his former mates did not file a claim for compensation. Respondents, claimants, are: "Kate Ostmann, sister; Marie Ostmann, niece; Joseph Ostmann, nephew; Gertrude Ostmann, niece; Henry Ostmann, brother-in-law; John J. Kemmerling, brother; Joseph Kemmerling, brother; Arthur Kemmerling, nephew; Warren Kemmerling, nephew; Elizabeth Kemmerling, sister-in-law."

The evidence disclosed that for more than a year prior to his death Kemmerling had lived with the family of Henry Ostmann. The members of this family testified that deceased always gave his wages to his sister, Mrs. Ostmann, and that the money was used to buy supplies for the entire family. The Ostmann family had other income. The children were employed, as well as the father who had been working for a number of years at the City Water Department. The father also received money from the United States Government. A short time before Kemmerling's death Ostmann bought a small farm in St. Louis County. The Ostmann home in the city was used as a part of the purchase price. Appellants introduced as a witness an employee of the insurance company who had investigated the death of Kemmerling. This witness testified as follows:

"Q. Kindly tell us what she said to you in the course of your investigation. A. She told me that she was a sister of the deceased; that she was the only sister, and that there was two brothers, one named John and one named Joe, and she also said that the deceased had stayed with her for about two years at the address on, I believe it is 5064 or 5 Claxton avenue. She also said that she knew very little about his personal affairs, but that he had been married several times, and that she knew the name of one whom she thought was his last wife, and that that woman's name was Nellie -- she didn't know her last name. She said she had clothed and fed this boy (the deceased) during that two years he had stayed with them, and that she thought if there was anybody entitled to any money as a result of his death that she was the one that ought to be entitled to it, for that very reason, that she clothed and fed him."

It was shown that deceased did not have steady employment. In fact it was hard to determine from the evidence just how much of the time he was employed. He was an iron worker and when engaged in his occupation earned $ 1.47 per hour. The witnesses testifying in behalf of this claim were principally the members of the Ostmann family. Their evidence was very uncertain as to any details connected with the financial aid received from deceased. When questioned on cross-examination they displayed a disposition to give evasive answers. The most flagrant of these was in the cross-examination of witness Henry Ostmann. To illustrate we quote a part of the cross-examination:

"Q. How long had you and your wife held this deed of trust for $ 1000.00? A. Oh, I don't know. I don't see where that's anybody's business.

"The Referee: That may be stricken.

"A. I have been sitting here all day answering silly questions and all day yesterday.

"The Referee: Answer the questions and we will get along nicely.

"Q. When did you and your wife purchase that deed of trust and from whom? A. I don't know. I am human. I can only stand so much.

"Q. When did you pay over this $ 1500.00 for the trade on the property on Chambers? A. I don't remember.

"Q. Who did you do business with? A. I am done. I may be ignorant but I ain't no fool. You will have to excuse me. I will have to get out in the air for a while. I am shaking all over."

Other claimants introduced evidence that deceased had at various times lived with them and during those times had aided them in a financial way. The deceased had not lived with any of these claimants for more than a year prior to his death.

The word "dependent" is defined by Section 3319, Revised Statutes 1929 (Mo. Stat. Ann., p. 8255), as follows:

"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 the injury."

The Compensation Commission was authorized to find that none of the...

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