Lumbermen's Reciprocal Ass'n v. Warner

Citation245 S.W. 664
Decision Date06 December 1922
Docket Number(No. 347-3724.)
PartiesLUMBERMEN'S RECIPROCAL ASS'N v. WARNER et ux.
CourtSupreme Court of Texas

Proceeding by G. R. Warner and wife under the Employers' Liability Act to obtain compensation for the death of their son, Richard Warner, opposed by the Lumbermen's Reciprocal Association, insurer. From a judgment of the Civil Court of Appeals (234 S. W. 545) affirming a judgment of the district court sustaining award of compensation, the insurer brings error. Affirmed.

Andrews, Streetman, Logue & Mobley and E. J. Fountain, Jr., all of Houston, and Kester W. Denman, of Lufkin, for plaintiff in error.

Fairchild & Redditt and Mantooth & Collins, all of Lufkin, for defendants in error.

SPENCER, P. J.

Defendants in error, G. R. Warner and wife, filed a claim with the Industrial Accident Board, as dependents under the Employers' Liability Act (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246 — 1 to 5246 — 91), to recover compensation for the death of their son, Richard Warner. Plaintiff in error was the insurer in the case. Compensation was awarded defendants in error by the Board, and from this decision plaintiff in error appealed to the district court. In that court, a judgment, based upon special findings of the jury, was rendered in favor of the defendants in error. Upon appeal this judgment was affirmed. Lumbermen's Reciprocal Association v. G. R. Warner et ux., 234 S. W. 545.

The contention most strongly urged by plaintiff in error in defense of the action is that defendants in error were not dependents within the meaning of the Employers' Liability Act. The basis of this contention is that the father owned real and personal property of the reasonable value of $7,000, that he was making a living independent of whatever may have been contributed by the deceased son, and that he had money in bank at and prior to the date of the son's death. The contention thus raised was properly presented by special requested charges, which were refused by the trial court, and by objections to the court's main charge to the jury.

The court did not in its charge define "dependents," but in submitting the issue employed this language:

"Special Issue No. 1. Were the defendants G. R. Warner and Mrs. Susan C. Warner, as parents of Richard Warner, deceased, taking into consideration their condition and circumstances in life, dependent, wholly or in part upon the labor of deceased, Richard Warner, for support at the time of the accident which resulted in his death?"

In connection with the giving of this issue, the court instructed the jury as follows:

"You are instructed that the burden is upon the defendants to show by a preponderance of the evidence that they were dependent, wholly or in part, upon the labor of Richard Warner, and if the defendants have so shown by a preponderance of the evidence, you will answer special issue No. 1, `Yes'; but if they have failed to show by a preponderance of the evidence that they were dependent, wholly or in part, upon the labor of Richard Warner, you will answer special issue No. 1, `No.'"

The attack made upon the court's action is that the use of the words "wholly or in part" is adding to the language of the statute. In other words, plaintiffs in error contend that there can be no recovery unless there is a total dependency.

To this contention we do not agree. The act nowhere defined dependents or dependency. The word is employed in the act only in enumerating the beneficiaries. It simply provides that "the compensation * * * shall be for the sole and exclusive benefit of * * * dependent parents." Article 5246—15. In the common acceptation of the term dependent or dependent person is included one who is dependent in whole or in part upon another for support. Had the Legislature intended to restrict compensation to cases in which the beneficiary was wholly dependent upon the injured employé for support, it could easily have used language to effect that purpose; but, not having done so, the court was without power to do so.

Plaintiff in error requested, and the court refused to give, special charge No. 5, which reads:

"In connection with your answer to special issue No. 1, you will consider the following definition: For one to be dependent upon another, as that term is used in the Workmen's Compensation Law, it is necessary that the other rely upon the one for contributions to furnish the ordinary necessities of life to the other for a person in the class and position of the other."

The charge is misleading, in that the jury may have inferred that defendants in error would not be dependents, within the meaning of the law, unless their son made cash contributions to them with which to secure the ordinary necessities of life. This would be a restriction never intended by the lawmaking body. One may bestow his labor upon another and give to the other of his time in part, and if the one bestowing his labor or giving his time be injured during the course of his employment with a third person, and if such person be at the time of his injury an employé within the meaning of the act and is incapacitated because of such injury from performing the services for the dependent, the latter is not excluded as a beneficiary under the act simply because he receives labor instead of cash contributions. The requested charge would no doubt be understood as excluding the beneficiary unless there were cash contributions.

Plaintiff in error asks a reversal because of the court's refusal to give its special charge No. 3, which reads:

"Gentlemen of the jury, if you believe from the evidence that, at the time of Richard Warner's death, his father was earning sufficient money from his own efforts and property to supply himself and wife with the ordinary necessities of life for one in their class and position, you will find that the parents were not dependent upon the deceased, and will answer, `No,' to special issue No. 1, submitted to you."

This charge ignores an important element of dependency — that of reliance upon the injured employé for support. It is an accepted rule in compensation cases that partial dependency may exist although the alleged dependent could have subsisted without the labor of the...

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    • United States
    • United States State Supreme Court of Idaho
    • February 2, 1926
    ...(McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068; Lumberman's Reciprocal Assn. v. Warner (Tex. Civ. App.), 234 S.W. 545, 245 S.W. 664.) employment which necessarily occurs at periodic intervals, which is directly connected with the employer's business, is conducted under the expre......
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    ...testimony to sustain the findings of the jury on this matter, and the assignment is therefore overruled. Lumbermen's Reciprocal Ass'n v. Warner, Tex.Com.App., 245 S.W. 664; United States Casualty Co. v. Vance, 91 S.W.2d 465, writ refused; Federal Underwriters Exchange v. Stewart, Tex.Civ.Ap......
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    • United States
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    ...to add such explanatory instruction as may be required by the facts of the particular case. See Rule 277 and Lumbermen's Reciprocal Ass'n v. Warner, Tex.Com.App., 245 S.W. 664." In Boaz v. White's Auto Stores et al., 141 Tex. 366, 370, 172 S.W.2d 481, 484, our Supreme Court compared the lan......
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