Postal Mut. Indemnity Co. v. Penn

• Decision Date: 28 September 1942
• Docket Number: No. 5461.,5461.
• Citation: 165 S.W.2d 495
• Parties: POSTAL MUT. INDEMNITY CO. v. PENN.
• Court: Texas Court of Appeals

Page 495

165 S.W.2d 495

POSTAL MUT. INDEMNITY CO. v. PENN.

No. 5461.

Court of Civil Appeals of Texas. Amarillo.

September 28, 1942.

Rehearing Denied November 2, 1942.

Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.

Suit by George Penn against Postal Mutual Indemnity Company to recover under Workmen's Compensation Act for the death of plaintiff's brother. From a judgment for plaintiff, defendants appeal.

Affirmed.

Milburn E. Nutt, of Wichita Falls, for appellant.

Caldwell, Baker & Jordan, of Dallas, Mathis & Caldwell, of Wichita Falls, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellee.

JACKSON, Chief Justice.

This is a compensation suit instituted in the District Court of Wilbarger County by George Penn, the appellee, against the Postal Mutual Indemnity Company, appellant, to recover compensation for the death of his brother, A. T. Penn, who received personal injuries accidentally which resulted in his death while in the course of his employment for Thomas Holcombe, who carried insurance with appellant for the protection of his employees.

No complaint is made of the sufficiency of the pleading or the jurisdictional facts.

The claim to compensation is based on the alleged dependency of appellee upon the financial assistance contributed to him by his deceased brother.

On special issues submitted the jury found that the appellee, George Penn, was dependent, as the term had been defined in the charge, upon A. T. Penn when he died on January 29, 1941; that there were no employees of the same class who worked substantially the whole of a year immediately preceding January 29, 1941, in the same or similar employment, in the same or a neighboring place; that in fairness and justness to both parties the average wage of the deceased was $40 per week; that the liability should be paid in a lump sum; that the business of appellee, the earnings of himself and wife, together with the contributions of his children, were inadequate to support appellee in accordance with his social position and accustomed mode of life when the deceased died.

The appellant contends that the court committed reversible error in refusing to give its requested peremptory instructions and in denying its motion for judgment non obstante veredicto because the testimony, it asserts, is wholly insufficient to support the finding of the jury that appellee was dependent in whole, or in part, on the deceased A. T. Penn when he was killed.

The parties agreed that A. T. Penn was employed by Thomas Holcombe on January 29, 1941, and, while so employed in the course of his master's business in Wilbarger County, Texas, he received injuries from which he died. It was also agreed that appellant paid to the Merkle Undertaking Company of Wichita Falls the sum of $250, which defrayed the entire funeral expenses of A. T. Penn, deceased.

The testimony is sufficient to support the conclusion that appellee was uneducated and qualified only to make a living for himself and wife by manual labor; that he did this until 1929 when he suffered a severe spell of influenza, was confined to his bed for several months and had never since regained his health and strength to such an extent that he is able to earn money by manual labor and that such condition existed up to the death of A. T. Penn, who was fifty-four years old when he died and appellee was thirteen years older; that in 1935 appellee tried to operate a grocery store consisting of a stock of less than $200 in value with the assistance of his wife, but failed. In 1936 he undertook to run a small restaurant with the help of his wife but he did not succeed. Thereafter, A. T. Penn assisted him financially to put tires on an old automobile and buy razor blades which appellee peddled from house to house but he failed to make a living; that he and his brother inherited some property situated in Petrolia, Texas, about 1925 in which they each owned an undivided one-half interest; that this property was never divided, consisted of two houses and three lots and about 1930 and 1931, on account of the incapacity of appellee, A. T. Penn allowed him and his wife to collect and retain all the rents from the property; the one-half interest belonging to deceased amounted to $6.50 per month, or $78 per year; that there was no agreement between the brothers that they together would give the rent to the wife of appellee as her separate property; that he and his wife collected the rent, the most of which she did and had continued to do up to the time of the trial; that none of it was ever turned over to or requested by the deceased; that the reason appellee's wife did most of the collecting was due to the inability of appellee to attend to renting the property and collecting the rent; that the deceased gave this rent to appellee and his wife to help defray their living expenses, buy groceries, medicine and other necessaries. Mrs. Hayth, the former wife of deceased, testified that the deceased told her that the rent of the property which he inherited from his mother had been turned over by him to appellee and his wife and that at no time after she married him did the deceased collect the rent but told her that it was collected by George and Julia, appellee and his wife. The testimony also shows that in addition to the rents used by appellee for his support from 1930 until the death of the deceased that he annually received from his younger brother from $150 to $200 per year, consisting of money, clothes, groceries and other necessaries; that A. T. Penn was in the hospital a part of 1939 and about two months in 1940; that he was without money to pay his own expenses but never during that time did he request that he be paid the one-half interest in the collected rent and that soon after he had recovered and shortly before he died he sent his brother $7.50 in money. The testimony of appellee was contradicted by statements he had made about dependency in an affidavit when the money was advanced by appellant to pay the funeral expenses of A. T. Penn, but where a witness contradicts his former testimony it is the province of the jury, and not the court, to determine whether the first or last testimony is true. Pritchard Rice Milling Co. v. Ellis et al., Tex.Civ.App., 266 S.W. 233; Texas Employers' Ins. Ass'n v. Herron et al., Tex.Civ.App., 29 S.W.2d 524. However, aside from the testimony of appellee, his inability to do manual labor and his incapacity to make a living and that contributions were made to him by his deceased brother on which he depended, are sufficiently shown by the evidence of witnesses independent of the testimony of appellee. J. J. Caldwell, C. P. Burgess and C. D. Hall, all disinterested parties, testified to facts and circumstances within their knowledge sufficient to show that appellee was in need of assistance and that A. T. Penn had been contributing to his support for years before his death. Mr. Huddleston and his wife, who is the daughter of appellee, also testified to the need of appellee and the assistance contributed to his support by A. T. Penn, deceased. The date of the contributions and the specific amounts thereof are not required to be shown with mathematical certainty.

In Jackson v. Langford, Tex.Civ.App., 60 S.W.2d 265, 267, this court held: "It was reversible error for the court to direct a verdict: `If, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff.' Gross v. Shell Pipe Line Corp., Tex.Civ.App., 48 S.W.2d 377, 378, and authorities cited. To the same effect is Jones et al. v. Jones, Tex.Civ.App., 41 S.W.2d 496, and authorities cited."

See, also, Texas Indemnity Ins. Co. v. Perdue, Tex.Civ.App., 64 S.W.2d 386, writ denied; Southern Underwriters v. Jones et al., Tex.Civ.App., 137 S.W.2d 52.

Discarding the adverse evidence and giving credit to the testimony favorable to the plaintiff and indulging all legitimate conclusions favorable to the plaintiff which could have been drawn from the facts proved, it is our opinion that the findings of the jury found ample support in the testimony. The law does not require the existence of total dependency. A recovery may be had for partial...