Millers' Indemnity Underwriters v. Green

• Decision Date: 01 February 1922
• Docket Number: (No. 1899.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 237 S.W. 979
• Parties: MILLERS' INDEMNITY UNDERWRITERS v. GREEN et al.
• Court: Texas Court of Appeals

237 S.W. 979

MILLERS' INDEMNITY UNDERWRITERS v. GREEN et al.

(No. 1899.)^*

Court of Civil Appeals of Texas. Amarillo.

February 1, 1922.

Rehearing Denied March 1, 1922.

Appeal from District Court, Moore County; W. I. Gamewell, Special Judge.

Proceeding by Robert F. Green and others against the Millers' Indemnity Underwriters before the Industrial Accident Board for an award. Case transferred to the district court, from whose judgment, awarding Robert F. Green and wife compensation, the Millers' Indemnity Underwriters appeals. Affirmed.

Neth L. Leachman and H. P. Lawther, both of Dallas, for appellant.

Engelking & Dotson, of Electra, for appellees.

BOYCE, J.

This is an appeal by the Millers' Indemnity Underwriters from a judgment awarding Robert F. Green and his wife, Ora E. Green, compensation under the Workmen's Compensation Law of this state (Vernon's Ann. Civ. St. Supp. 1918, arts. 5246—1 to 5246—91) for the death of their son, Robert Lee Green.

Only two issues of fact were made in the trial: (1) As to whether the appellees were "dependent parents" within the meaning of that term as used in the law (article 5246— 15, Vernon's Texas Civil Statutes, 1918 Supp.); (2) as to whether the appellees were entitled to a lump sum settlement. Both of these issues were submitted to a jury and decided in appellees' favor. Appellant contends that it was entitled to a peremptory instruction in its favor as to these two issues of fact, and we make the following statement to be considered in connection with our disposition of these contentions:

Robert Lee Green, at the time of his death on May 25, 1920, was driving a truck near Amarillo, Tex. The record does not show definitely just what his age was, but we infer that he was somewhere about 18 to 21 years old. His parents, at the time of his death, were living at Electra, and were engaged in running a confectionery and restaurant at such place. The father was at the time about 47 years old, and the mother 42. There were two children, boys, one 14 years old and the other 10. For about 13 years prior to 1920 the family had lived in Runnells county on a farm consisting of 110 acres, which they owned, and which was worth about $5,000. During the early part of the year 1919 Robert Lee Green was away from home at work, and sent his parents about $30 per month out of his wages. In April, 1919, the father took pellagra, and deceased returned to the farm, worked the crops, and harvested them. While not busy on the home farm he worked out for wages, and his wages were paid to his father. About $1,500 was realized from the crops made on the farm, and this money was applied in payment of debts, leaving the father an indebtedness of about $200. In January, 1920, the mother went to Electra and arranged to buy a confectionery and restaurant business. She made a cash payment on the purchase price of the business by using the proceeds of the sale of Robert Lee Green's cattle and some cattle and other personal property owned by the parents, but the embarkation in this business left the parents considerably in debt. About the first of December, 1919, deceased went to work at Wichita Falls, and during that month sent his mother $25. He helped the family move in January, 1920, and paid some of the expenses of the moving. In March he again sent his mother $25, and during the latter part of March went to Amarillo to work. Before leaving he bought some groceries for the family, and told his mother that when the business was opened up he would return and help her with it. The Greens did not get possession of the said business until May 21, 1920. From February, 1920, to such time Mrs. Green and her children ran a little milk station, and Mrs. Green worked in the confectionery store without compensation for the purpose of learning the business. The father was sick during all the year 1919, with pellagra. He was getting some better when he took the "flu" about February, 1920, and was unable to do work of any consequence up to the time of the son's death, and has never fully regained his health. For a few months after it was opened the confectionery and restaurant business prospered, but at the time of the trial, and for several months before that, it had not been making expenses, and, according to appellees' testimony, their debts were increasing. At the time of the trial they owed about $4,500 on this business; $2,500 of this was past due, and the creditors were calling for their money.

Appellant's brief contains an interesting history of the development of the Compensation Law, and reference to a great many decisions that have dealt with such laws and applied them to facts analogous to those presented by this case. The question as to the construction of the term "dependency," as used in such laws, has been frequently before the courts, and two of the Courts of Civil Appeals of this state have already had occasion to consider this very provision of our own statute. Southern Insurance Co. v. Hibbs, 221 S. W. 303; Lumbermen's Reciprocal Association v. Warner, 234 S. W. 545. We therefore omit any extended discussion of such question. In the case first cited the court said:

"The question of dependency is one of fact rather than a question of law, and each case must rest on its own facts. The test of dependency is, not whether the family could support life without the services or contributions of the deceased but whether they depended upon them as part of their income or means of living. Bradbury, Workmen Compensation, pp. 571 to 573. All the cases seem to hold that partial dependency is all that is required, and a mere temporary intermission in the performance of services or the making of contributions will not destroy dependency."

This statement seems to be well sustained by the authorities. Note, Ann. Cas. 1913E, 481; Ann. Cas. 1918B, 750, 760, 761; Honnold on Workmen's Compensation, §§ 71-77; 28 R. C. L. p. 770; and, in addition, authorities cited in the two cases above referred to. Appellees' evidence shows that they had in the past received from their son material and needed contribution to their support, both in labor and money. They testified that they expected to receive and depended on receiving such aid in the future; and the jury were warranted in finding that their expectations were well founded. The authorities cited sustain the action of the trial court in submitting the issue in this case to the jury. The court submitted the issue of dependency in this language:

"Were the defendants Robert F. Green and Ora E. Green, as parents of Robert Lee Green, deceased, dependent wholly or in part upon the labor of the deceased, Robert Lee Green?"

The appellant's third proposition complains of this method of submitting the issue, and the fourth proposition asserts that the court erred in not submitting appellant's requested issue as follows:

"Were the defendants, Robert F. Green and Ora E. Green, taking into consideration their condition and circumstances in life, whatever you may find that and those to be, dependent upon Robert Lee Green at the time of his death?"

If it be true that the law intended by the word "dependent" to include not only those who were wholly dependent, but also those partially dependent, as has been held in the authorities already cited, we can see no good reason to hold that it would be error for the court to put...