Lumbermen's Reciprocal Ass'n v. Warner

• Decision Date: 14 October 1921
• Docket Number: (No. 644.)
• Citation: 234 S.W. 545
• Parties: LUMBERMEN'S RECIPROCAL ASS'N v. WARNER et ux.
• Court: Texas Court of Appeals

234 S.W. 545

LUMBERMEN'S RECIPROCAL ASS'N v. WARNER et ux.

(No. 644.)

Court of Civil Appeals of Texas. Beaumont.

October 14, 1921.

Rehearing Denied November 9, 1921.

Appeal from District Court, Angelina County; L. D. Guinn, Judge.

Proceeding by G. R. Warner and wife under the Workmen's Compensation Act, to obtain compensation for the death of a son, Richard Warner, opposed by the Foster Lumber Company, employer, and the Lumbermen's Reciprocal Association, the insurer. From a judgment of the district court sustaining award of compensation, the insurer appeals. Affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for appellant.

Fairchild & Redditt and Mantooth & Collins, all of Lufkin, for appellee.

WALKER, J.

This is an appeal by Lumbermen's Reciprocal Association from a judgment rendered against it in favor of appellee, sustaining an award of the Industrial Accident Board in their favor. Richard Warner was the son of G. R. Warner and wife, and at the time of his death was in the employment of the Foster Lumber Company, which carried a policy of industrial insurance with appellant. It is conceded that Richard Warner was insured under the provisions of this policy, and was killed while in the due course of his employment. At the time of his death he was about 22 years old, a single man, and made his home with his parents, G. R. Warner and wife. The case was submitted to the jury on the following charge:

"This case will be submitted to you on special issues, and you will answer such special issues as may be submitted you by the court.

"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 conditions and circumstances in life, dependent wholly or in part upon the labor of the deceased, Richard Warner, for support at the time of the accident which resulted in his death? You will answer this `Yes' or `No' as you may determine from the evidence."

(To this question the jury answered: "Yes.")

"Special issue No. 2:

"What was the average daily wage which was earned by an employé of the same class as the deceased, Richard Warner, working substantially the whole of the immediate preceding year in the same or a neighboring place as that which the said Richard Warner was working at the time of his death and some time prior thereto? You will answer this by stating the amount per day, in dollars and cents.

(To this question the jury answered: "$2.50 per day.")

"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.'

"You are charged that in passing upon special issue No. 1 that a gift or gifts from Richard Warner to his mother and father would not, of itself, show that they were dependent upon him; but you will look to all of the evidence in the case in passing upon the question before you. You are the sole and exclusive judges of the weight of the evidence and credibility of the witness, but the law you will receive from the court as contained in this charge and be governed thereby."

Court's charge No. 2, requested by plaintiff, and given to the jury:

"You will disregard in your deliberation the remarks of counsel for the defendants telling you in substance and effect that defendants, under the Compensation Law, are entitled to recover."

Special charge No. 1, requested by defendant and given to the jury:

"You are charged that, in case you are unable to ascertain the average daily wage which was earned by Richard Warner, deceased, at the time of his death by ascertaining the average daily wage which was earned by an employé of the same class as the deceased, Richard Warner, working substantially the whole of the immediate preceding year in the same or neighboring place as that which the said Richard Warner was working at the time of his death, and some time prior thereto, then you will compute the average daily wage in any manner that may seem just and fair to the parties to this suit."

Appellant asked for a peremptory instruction in its favor, and also excepted to the giving of issue No. 1, on the ground that the undisputed facts showed that the father and mother were not dependent, within the meaning of article 5246—15, Complete Texas Statutes 1920. As bearing on this issue, this article reads:

"The compensation provided for in the foregoing section of this act shall be for the sole and exclusive benefit of the surviving husband, * * * dependent parents," etc.

At the time of the death of their son, G. R. Warner and wife owned the following property:

                 Real property
                Abst. Original                No
                No.   Grantee.               Acres. Value
                39 Thos. Quevade               58..$1,450 00
                39 Thos. Quevade               22..   330 00
                38 J. A. Prado                116.. 1,740 00 "at least."
                40 J. L. Quinalty               5
                      "house worth $1,200
                       worth great deal
                       more than".................. 1,500 00
                                                  __________     $5,020 00
                 Personal property
                  Angelina county:                      Value.
                3 horses .......................... $ 300 00
                Dog ...............................    50 00
                Automobile ........................ 1,040 00
                20 head cattle, rendered at........   200 00
                150 head hogs, rendered at.........   300 00
                    Liberty county:
                35 or 40 head cattle (give same
                  value per head as Angelina county
                  cattle) ...........................  400 00
                150 head hogs (give same value
                  per head as Angelina county
                  hogs) .............................  300 00
                                                      _______   $2,590 00
                                                                _________
                                                                $7,610 00
                  Bank account, around ..............              300 00
                                                                _________
                                                                $7,910 00
                

We believe the following statement from appellees' brief reflects the facts on which they rely to establish dependency within the meaning of the quoted section of the Workmen's Compensation Act, viz.:

"The evidence on the proposition of dependency shows:

"That G. R. Warner and wife, Susan Warner, father and mother of deceased Richard Warner, were 60 and 55 years old respectively; that the father had been ruptured four years previous, and had not been able to do manual labor as before his injury; that the Warner family now consists of Mr. Warner and wife; that the deceased, Richard Warner, was 22 years old, and still single; that he had lived at home all of his life, as one of the family, only when he would be away occasionally at work, but that he was never away more than a month at a time; that when the son, Richard Warner, was at home he worked on the farm and helped his father with the stock, and did anything that was to be done around the place, and also helped his mother a great deal, doing anything from the washtub to dish-washing, milking, cleaning the yard off, cooking, or anything else; that Richard Warner had been with his parents all of his life, and from the time he was large enough, he had been working; that Richard Warner had always assisted his father and mother in any sort of work around the place; that he had given his father money at various times; that Richard Warner had contributed to his mother from time to time, giving her $8, $10, or $15, $45 being largest amount; that Richard Warner had only been away from home 8 or 10 day when he was killed; that when he left home this time he said, `I am coming back in April and I am going to stay at home;' that Richard Warner's services were worth at the time $2.50 or $3 a day; that when the father had to hire hands to do the work that Richard did he had to pay from $2.25 to $2.50 and board; and that the son was worth more to the father than any man he could hire, because he knew more about the business.

"Mrs. Warner, mother of deceased, testified that during his lifetime he lived on the farm with his father and mother; that son lived with them practically all the days of his life; that Richard Warner usually did anything in the way of work there was to be done about the place; he worked in the field, fed the stock, milk the cows; he washed the dishes, and `I never washed without him helping when he was at home'; that at the time of his death he was the only child staying at home; that the son would buy parts for the automobile, and that he would keep it up; that Richard Warner contributed to her in other ways; he gave her from $8 to $10 to $15 at different times, and that during one six weeks, he gave her $45, and he told her to use it for anything that she needed it for.

"Mrs. Warner further testified: As to whether he was a constant worker during the time he was at work, he was as good a worker as any boy as she ever had been about; that she had raised two boys and had seen lots more of them raised, and he (Richard Warner) was as constant a worker as any she had ever seen; that he was not a lazy child, and never had been a lazy child; that she is 55 years old, and Mr. Warner is 60 years old, and, of course, we are both declining in years, as everybody does at that age; that among other things around the place that her son (Richard Warner) would do was such as cutting wood and milking cows."

The construction of this article, as it relates to dependent parents, was before the San Antonio Court of Civil Appeals in Southern Surety Co. v. Hibbs, 221 S. W. 303. We have given that case our most careful consideration, and approve the conclusion reached by Judge Fly, not only as applied...