Pittman v. Scullin Steel Co.

• Decision Date: 09 April 1956
• Docket Number: No. 2,No. 44716,44716,2
• Citation: 289 S.W.2d 57
• Parties: Maxle Mae PITTMAN, Claimant-Appellant, v. SCULLIN STEEL COMPANY, Employer-Respondent, and American Automobile Insurance Company, Insurer-Respondent
• Court: Missouri Supreme Court

Page 57

289 S.W.2d 57

Maxle Mae PITTMAN, Claimant-Appellant, v. SCULLIN STEEL COMPANY, Employer-Respondent and American Automobile Insurance Company, Insurer-Respondent.

No. 44716.

Supreme Court of Missouri, Division No. 2.

April 9, 1956.

Max M. Librach, St. Louis, for claimant-appellant, Gerald Cohen, St. Louis, of counsel.

John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for respondents.

STOCKARD, Commissioner.

This is an appeal from the judgment of the circuit court of the City of St. Louis affirming an award of the Industrial Commission disallowing compensation alleged to be due to appellant as a dependent of Roosevelt Pittman who on May 25, 1951 sustained fatal injuries resulting from an accident arising out of and in the course of his employment. His average weekly wage warranted an award of $12,000 compensation to a total dependent, if there was one. This is the amount in dispute and establishes jurisdiction in this court. Mo. Const. art. V. Sec. 3 (1945), V.A.M.S.

Following the death of Roosevelt Pittman, claims were filed by Lucy Pittman Wilson, who claimed to be the surviving widow; Maxie Mae Pittman, deceased's daughter and appellant herein; and England Earleen Flowers, deceased's sister. All contended to be total dependents. Helen and Mary Ann Brown, deceased's nieces, filed claims contending to be partial dependents. Odis Billingsley, deceased's sister, made a claim for reimbursement of funeral expenses.

Following a hearing, the referee of the Division of Workmen's Compensation made an award in favor of Maxie Mae Pittman in the amount of $12,000 as compensation, and an award in favor of Odis Billingsley in the amount of $150 for funeral expenses. The claims of all the others were denied. The employer and insurer alone filed an application for review by the Industrial Commission which entered its final award affirming the award in favor of Odis Billingsley, but denied compensation to Maxie Mae Pittman on the ground that she was not a total or partial dependent. An appeal to the circuit court of the City of St. Louis was taken by Maxie Mae Pittman only, who then appealed to this court after the circuit court affirmed the award of the Industrial Commission.

Appellant's claim is based upon her contention that she is the legitimate daughter of the deceased below eighteen years of age at the time of his death and therefore conclusively presumed to be a total dependent. The evidence established that appellant was the child of the deceased and Ella Mae Kilpatrick; that she was born in Mississippi on September 13, 1935; that her parents never entered into a ceremonial marriage; and that she was not in fact a total dependent of the deceased. The evidence further established that the deceased was a resident of the state of Missouri at the time of his death, and that appellant was residing and always had resided with her mother in the state of Mississippi.

Section 287.240 RSMo 1949, V.A.M.S., provides that the word 'dependent' shall mean 'a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his [employee's] wages at the time of the injury.' It also provides that certain described persons shall be conclusively presumed to be totally dependent for support upon a deceased employee including 'A * * * child * * * whether legitimate or illegitimate, under the age of eighteen years' dependent upon 'the parent legally liable for such support or with whom he is living at the time of the death of such parent.' Appellant was not living with Roosevelt Pittman at the time of his death, but if appellant was the legitimate daughter of deceased he was 'legally liable' for her support, within the purposes of Section 287.240, paragraph 4, RSMo 1949, V.A.M.S. Holley v. Mississippi Lime Co. of Missouri, Mo.Sup., 266 S.W.2d 606.

The parties have presented this case on appeal solely on the question of whether the Industrial Commission correctly found that Roosevelt Pittman and Ella Mae never entered into a valid common-law marriage, and therefore appellant was not the legitimate child of the deceased, except that in her reply brief appellant contends for the first time that as an illegitimate child she is entitled to be conclusively presumed to be a total dependent because there was a legal liability on Roosevelt Pittman to support her.

About 1930 at Eupora, Mississippi, Ella Mae Kilpatrick and Roosevelt Pittman 'started living together.' They lived together until about three months after appellant's birth on September 13, 1935, when Roosevelt was imprisoned in the penitentiary. There was some testimony that it was about eighteen months after appellant was born when Roosevelt was imprisoned, but in either event after his release from prison he and Ella Mae never resumed their relationship. No divorce was obtained by either party, but Ella Mae stopped using the name Pittman when she and Roosevelt 'quit living together.' On May 28, 1938 Ella Mae obtained a marriage license and by ceremony married McKinley Hemphill. She stated that she did not obtain a divorce from Roosevelt before marrying Hemphill because they had never obtained a license. Hemphill obtained a divorce from Ella Mae and by ceremony Ella Mae then married James Henry. She lived with Henry for only a few months, and although no divorce was obtained from him, she testified at the hearing under the name of Ella Mae Hemphill.

During the time Roosevelt and Ella Mae lived together they lived in a rented house near Eupora, Mississippi, and she worked as a cook until she become pregnant. They went to church together and she introduced her him as her husband and he introduced her as his wife. The pastor of the church testified that Roosevelt and Ella Mae came to his church in 1935 and joined the church as Mr. and Mrs. Pittman. There was also testimony that Roosevelt's mother treated appellant like a grandchild, and that appellant referred to Roosevelt's sister as 'Aunty.' However, England Earleen Flowers, a sister of Roosevelt and a claimant contending to be a total dependent, testified that Roosevelt lived with her and her husband 'a short time' in 1939, and that she knew Ella Mae had lived with Roosevelt and that appellant was the child of Roosevelt and Ella Mae. But she also testified that she had never heard of Roosevelt being married.

The birth of Maxie Mae was not registered until January 13, 1948, more than twelve years after her birth. The birth certificate issued by the Mississippi State Board of Health, Bureau of Vital Statistics, contained the answer 'No' to the question, 'Is this a legitimate child?' The certificate listed the name of the father as Roosevelt Pittman and the full name of the mother 'before marriage' as Ella Mae Kilpatridge. The issuance of the birth certificase was based upon information furnished under oath by Ella Mae, who listed her relationship to appellant as mother, and by Oddie Pitman, whose relationship to appellant was listed as aunt. Oddie Pitman was a sister of Roosevelt and the same person to whom the allowance for funeral expense was made as Odis Billingsley. Roosevelt was present when the application for the birth certificate was made.

Lucy Wilson, who filed a claim as Lucy Pittman contending to be the surviving widow of Roosevelt, testified that she had been previously married to Daniel Neal from whom she had not been divorced, but that about 1934 or 1935 she started living with Roosevelt on a plantation near Greenwood, Mississippi. Apparently this occurred after his release from prison, and if so, the time of the commencement of this relationship is stated to be earlier than it could have occurred unless the period of Roosevelt's imprisonment was extremely short. After about two years they moved into Greenwood where they lived together for about six years. During this time, and while Roosevelt was living with Lucy, Ella Mae visited him at least once but there is no evidence that she objected to his relationship with Lucy or that she sought to have him return to her as her husband. Roosevelt and Lucy then moved to Memphis where they lived for about three years and then moved to St. Louis. No ceremonial marriage was ever had, and they separated in 1950 because, according to Lucy, Roosevelt started living with another woman by the name of Sally. Lucy was married to King Wilson on October 2, 1950. There had been no divorce but she was not living with him at the time of the hearing.

Testimony was given in behalf of appellant that Roosevelt frequently wrote to her from St. Louis, that he stated that she was his daughter, and that he made contributions to her support including some items of clothing. Lucy Wilson testified that sometimes Pittman sent money to appellant. Ella Mae testified that during the last year of Roosevelt's life he sent appellant $25 per month, various articles of clothing and also made special gifts to her of money on Easter and Thanksgiving. However, appellant stated on direct examination that all she received from Pittman during the last year of his life was $5 on Valentine Day and $10 on Thanksgiving, that he sent her some other money but that the total she received during the last year of his life was $25. After Roosevelt Pittman was released from prison he did not contribute to the support of Ella Mae.

On June 1, 1951, shortly after the death of Roosevelt, appellant's mother stated to an insurance investigator that appellant's father was Roosevelt, that she and Roosevelt had never been married but that they started living together in 1930 and 'lived together, as man and wife,' for five years. She further stated that as far as she knew Roosevelt had never been married and that she was the sole support of appellant. On Roosevelt's application for employment with Scullin Steel Company, dated January 22, 1944, he left blank the space for the statement of the number of his children, and he listed his mo...