Masters v. Southwestern Greyhound Lines

• Decision Date: 30 October 1947
• Docket Number: No. 6696.,6696.
• Citation: 205 S.W.2d 882
• Parties: MASTERS et al. v. SOUTHWESTERN GREYHOUND LINES, Inc., et al.
• Court: Missouri Court of Appeals

205 S.W.2d 882

MASTERS et al. v. SOUTHWESTERN GREYHOUND LINES, Inc., et al.

No. 6696.

Springfield Court of Appeals. Missouri.

October 30, 1947.

Appeal from Circuit Court, Webster County; C. H. Jackson, Judge.

"Not to be published in State Reports".

Proceeding under the Workmen's Compensation Act by Rhetta Luann Masters and Gary Leon Masters, by Mrs. Ruby Marie Coffman, guardian and curatrix, claimants, opposed by the Southwestern Greyhound Lines, Inc., employer, and the Continental Casualty Company, insurer. From a judgment of the circuit court overruling the decision of the commission awarding compensation, the claimants appeal.

Judgment affirmed in part and reversed in part with directions.

Walter A. Raymond, of Kansas City, for appellants.

Henry M. Shughart and Harry P. Thomson, Jr., both of Kansas City, for respondents.

VANDEVENTER, Judge.

This is a case arising under the Workmen's Compensation Act. The facts were stipulated and are briefly as follows:

Ralph Scott Masters (hereinafter referred to as the deceased) was an employee of the Southwestern Greyhound Lines, which said employer was fully insured by the Continental Casualty Company March 18, 1943. On that date Masters was involved in an accident near Niangua, Missouri, which arose out of and in the course of his employment and which resulted in his death. At the time of his death, he was married and his wife was Ruby Marie Masters. They had two children, Gary Leon, a son, born on the 2d day of July, 1935 and Rhetta Luann, a daughter born on the 20th day of January, 1940. Deceased had been for some time prior to the accident, residing in St. Louis, his wife residing in Kansas City and the two children had been, since September, 1942, residing with their grandparents (parents of deceased) on a farm near Maryville, Missouri. Deceased's employment was that of an extra operator for the employer. He had not been continuously employed for a period of one year preceding the accident but his average weekly earnings were $49 and his annual earnings were $2,548.92. After his death the Continental Casualty Company, the insurer, paid funeral expenses of $150, medical and hospital expenses of $188.20 and compensation to the widow of deceased, prior to her remarriage, at the rate of $20 per week from March 19, 1943 to May 20, 1945 or a total sum of $2,271.43. On the 21st day of May, 1945, the widow remarried and thereafter her name was Ruby Marie Coffman.

Prior to her remarriage, the widow instituted a third party suit for damages for the death of her husband and on the 16th of November, 1945, after her remarriage, this suit was settled by a payment to the widow of $641.15, which was in addition to the payments made by the insurer. After her remarriage, Ruby Marie Coffman resided in Wyandotte County, Kansas, and on the 1st day of April, 1946, was appointed legal guardian of the children. From September, 1942 until after the accident in which deceased was killed, the children were making their home with their grandparents at Maryville, but neither the father nor mother was living there or providing a home for either of the children.

"That the cost of maintaining said minor children in the home of the grandparents was $40.00 per child or a total of $80.00 per month for the two children, and that said cost of $80.00 per month was contributed in money and clothing five-eighths or $50.00 per month by the father, one-eighth or $10.00 per month by the mother and two-eighths or $20.00 per month by the grandparents. That the said mother was employed in and living in Kansas City, Missouri, at the time, and the father was living in St. Louis, Missouri, at the time, and that on the 18th day of March, 1943, and on the date of his death the father Ralph Scott Masters was twenty-seven (27) years of age, and the mother Ruby Marie Masters was twenty-eight (28) years of age, and that the said Ralph Scott Masters had no dependents other than his wife Ruby Marie Masters, and the two minor children aforesaid."

No compensation had been paid to said minor children or either of them since the remarriage of their mother. Walter A. Raymond, an attorney of Kansas City, had a contract of employment whereby his attorney fee should be payable in a lump sum, subject to the approval of the Commission, in the amount of $500 or 10% of the award, whichever sum should be the greater. It was also stipulated that either party might supply additional facts if necessary for the purpose of entering the proper award in the case and each reserved the right to appeal from any award by the compensation commission. Neither party took advantage of the provision permitting them to supply additional facts and the case was submitted on the foregoing stipulation of facts alone.

The referee found that the insurer had paid for medical aid $188.20 and for burial expenses $150 and allowed death benefits to each of the children of $10 per week for 376.4285 weeks subject to a lien for the attorney's fee, heretofore mentioned and subject to a credit of $188.20 for medical aid and $150 burial expenses, paid by the employer and insurer. The referee found that Ruby Marie Coffman, the widow, and the two minor children were total dependents, that at the date of her remarriage, she had been paid compensation in the sum of $2,271.43, and that on November 16, 1945 and after the widow's remarriage, she had been paid $641.15, the proceeds of a third party action and said sum was not deductible from the sum due the minor children. The referee further found that the deceased was legally responsible for said support and maintenance of the minor children at the time of his death and that they were total dependents.

An application for a review was filed and the matter was reviewed by the entire commission which approved the findings of the referee. An appeal was taken and the circuit court overruled the commission and held that the two children were only partial dependents, that the employer and insurer were liable for only five-eighths of the amount necessary to support said children and that there was due from the insurer $4,403.64 to be paid at the rate of $10 per week for each of them. This sum was made subject to the lien of claimants' attorney in the sum of $500. The court also allowed the insurer credit for the $641.15 payment to the widow in the third party suit. From this judgment, the claimants have appealed.

There are two questions presented for review. 1. Were the children (claimants) total dependents? 2. Was the insurer entitled to a credit for $641.15, the third party recovery, paid to the widow after her remarriage?

Under the Workmen's Compensation Act, Sec. 3709, R.S.Mo.1939, Mo.R.S. A., the word dependent is 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." There can be no doubt, therefore, but that the minors were "dependents". But were they "total dependents?" Section 3709 further provides (1) that a wife for whose support the husband is legally liable and (2) natural children under the age of 18 years, if living with the deceased at the time of his death (there being no surviving dependent parent or step-parent), are conclusively presumed to be total dependents. If there are two totally dependent children, the benefits shall be divided among them in such proportions as may be determined by the Commission after consideration of the facts. "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 them."

Where there is conflicting testimony as to dependency, the courts will defer to the findings of the commission. Gessler v. Liggett Myers Tobacco Co., Mo. App., 54 S.W.2d...