McCormick v. The Central Coal & Coke Company

• Decision Date: 07 February 1925
• Docket Number: 25,694
• Citation: 117 Kan. 686,232 P. 1071
• Court: Kansas Supreme Court
• Parties: WILLIAM MCCORMICK and FLOYD MCCORMICK, Minors, by their Guardian, DOROTHY MCCORMICK, Appellees, v. THE CENTRAL COAL & COKE COMPANY, Appellant

232 P. 1071

117 Kan. 686

WILLIAM MCCORMICK and FLOYD MCCORMICK, Minors, by their Guardian, DOROTHY MCCORMICK, Appellees, v. THE CENTRAL COAL & COKE COMPANY, Appellant

No. 25,694

Supreme Court of Kansas

February 7, 1925

Decided January, 1925

Appeal from Crawford district court, division No. 2; GEORGE F BEEZLEY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT--Compensation Must Be Apportioned Among Dependents According to Dependency. The compensation payable under the workmen's compensation act to dependents of a deceased workman, when apportioned among them must be apportioned according to the dependency of the respective dependents, as the facts show that to be. Such apportionment is not controlled by the law of decents and distribution.

2. SAME--Liability of Employer to Pay Compensation Fixed By Injury of Workman--Apportionment to Dependents May Be Modified. The obligation of the employer to pay compensation, the amount to be paid, and of the dependents, considered jointly, to receive it, is fixed by the injury and death of the workman, but apportionment of compensation among the dependents, if made, may be modified when changed conditions require it.

3. SAME. The employer is not concerned with the question of the apportionment of compensation among dependents wholly dependent.

4. SAME--Marriage of One Dependent--Rights of Other Dependents Not Affected Thereby. Marriage of a dependent causes such person to cease to be a dependent, but this does not affect the right of other dependents, wholly dependent, to receive the full amount of the compensation.

C. O. Pingry, P. E. Nulton, and G. L. Stevenson, all of Pittsburg, for the appellant.

Phil H. Callery, J. E. Callery, Sylvan Bruner, and Caroline A. Lowe, all of Pittsburg, for the appellees.

OPINION

HARVEY, J.:

This is a workman's compensation case. H. E. McCormick while working for the Central Coal and Coke Company, and both operating under the workman's compensation act, was accidentally killed May 25, 1920. He left a widow and two sons, ages respectively six years and six months. His wages were such that his dependents were entitled to the maximum compensation, $ 3,800. No proceedings in court or by arbitration were had to determine the amount of compensation, the dependents to whom it should be paid, nor for the apportionment of the payments among dependents. By agreement between the employer and the widow for herself, and as guardian for the children, payments were made at the rate of $ 15 per week. These payments continued until October 17, 1922, making total payments of $ 1,875 (of which $ 240 had been paid to the widow personally after her remarriage). At that time the employer ceased paying compensation, for the reason that it learned that the widow had remarried in April, 1921. In June, 1923, the children, by their guardian, filed an application in the district court for the appointment of an arbitrator for the purpose of settling and adjusting their claim for compensation against the employer. An arbitrator was appointed, to whom all questions as to the rights of plaintiffs for compensation were referred. The hearing before the arbitrator was upon an agreed statement of facts embodying the matters above stated, and it was specifically agreed that the arbitrator should make findings as to who were and are the dependents of H. E. McCormick, and the amount of compensation respectively due to each of such dependents.

The arbitrator found that a fair division of the compensation between dependents at the time of H. E. McCormick's death is that each should receive one-third of the compensation; that the share of the compensation which the two children should receive was $ 2,533.33, two-thirds of the total compensation payable; that of this sum there had been paid to their mother for them $ 1,645, leaving the balance unpaid to the minor children of $ 888.33; that because no payments had been made since October, 1922, a part of that was due, which should be paid in a lump sum, and the remainder should be paid at $ 10 per week; that the payment of the share of the widow ceased on her remarriage, and that the portion of the widow's one-third, unpaid at the time of her remarriage, should not be paid to anyone.

Upon a review of this award in the district court, the court held that defendant should receive credit for all money paid by way of compensation, being the total sum of $ 1,875; that the part thereof paid after the marriage of the widow should be construed as having been paid to her for the benefit of the children, and that the children are entitled to receive all of the unpaid portion of the compensation, namely, $ 1,925, at the rate of $ 15 per week from October, 1922. The sum unpaid up to the time of the hearing was awarded in a lump sum and the balance to be paid $ 15 per week. Judgment was entered accordingly. From this judgment the Central Coal and Coke Company has appealed.

In a case such as this the rights of dependents to compensation is governed by the statute. (Shade v. Cement Co., 92 Kan. 146, 139 P. 1193, 93 Kan. 257, 144 P. 249; McRoberts v. Zinc Co., 93 Kan. 364, 144 P. 247; Moeser v. Shunk, 116 Kan. 247, 251, 226 P. 784.)

The pertinent portion of the statutes necessary to be specifically considered in determining the questions presented on this appeal are as follows:

"'Dependents' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. 'Members of a family,' for the purpose of this act, means only widow or husband, as the case may be, and children; or if no widow, husband, or children, then parents or grandparents; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include step-parents, children include step-children, and grandchildren include step-grandchildren, and brothers and sisters include stepbrothers and stepsisters, and children and parents include that relation by legal adoption. In the meaning of this section a widow shall not be regarded as a dependent of a deceased workman nor as a member of his family, if she shall have for more than six months willfully or voluntarily deserted or abandoned him prior to the date of his death; and a husband, whether he be capable of wage earning or not, shall not, within the meaning of this section, be regarded as a dependent of his deceased wife, nor as a member of her family, if he shall have for more than six months willfully or voluntarily deserted or abandoned her prior to the time of her death. (L. 1911, ch. 218, § 9 [with italicized portion added by amendment] L. 1917, ch. 226, § 2.)" (R. S. 44-508.)

"The amount of compensation under this act shall be . . . 2 (a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, computed as provided in section 4 of this act, but not exceeding thirty-eight hundred dollars ($ 3,800) and not less than fourteen hundred dollars ($ 1,400) . . . (b) If a workman does not leave any such dependents, but leaves dependents in part dependent on his earnings, such proportion of the amount payable under the provisions of paragraph 2 (a) of this section as may be agreed upon or determined to be proportionate to the degree of dependency of the said dependents. (c) If a workman does not leave any dependents, the reasonable expense of his burial, not exceeding one hundred and fifty dollars ($ 150). (d) Marriage of any dependent shall terminate all compensation of such dependent, but shall not affect the compensation allowed other dependents. When any minor dependent, not physically or mentally incapable of wage earning shall become eighteen (18) years of age, such compensation shall cease. (L. 1911, ch. 218, § 11, [with italicized portion added by amendment] L. 1913, ch. 216, § 5.)" (R. S. 44-510.)

"Where death results from the injury and the dependents of the deceased workman as herein defined, have agreed to accept compensation, and the amount of such compensation and the apportionment thereof between them has been agreed to or otherwise determined, the employer may pay such compensation to them accordingly (or to an administrator if one be appointed) and thereupon be discharged from all further liability for the injury. Where only the apportionment of the agreed compensation between the dependents is not agreed to, the employer may pay the amount into any district court having jurisdiction, or to the administrator of the deceased workman, with the same effect. Where the compensation has been so paid into court or to an administrator, the proper court, upon the petition of such administrator or any of such dependents, and upon such notice and proof as it may order, shall determine the distribution thereof among such dependents. Where there are no dependents, medical and funeral expenses may be paid and distributed in like manner. (L. 1911, ch. 218, § 14.)" (R. S. 44-513.)

"Where death results from injury, the action shall be brought by the dependent or the dependents entitled to the compensation or by the legal representative of the deceased for the benefit of the dependents as herein defined; and in such action the judgment may provide for the proportion of the compensation to be distributed to or between the several dependents; otherwise such proportion shall be determined by the proper probate court. . . . (L. 1911, ch. 218, § 36.)" (R. S. 44-534.)

"The cause of action shall be deemed in every case, including a case where death results from the injury, to have accrued to the injured workman or his dependents or legal representatives at the time of the accident . ....