Pushor v. Am. Ry. Exp. Co., 22217.

• Decision Date: 24 June 1921
• Docket Number: No. 22217.,22217.
• Parties: PUSHOR et ux. v. AMERICAN RY. EXP. CO.
• Court: Minnesota Supreme Court

149 Minn. 308

183 N.W. 839

PUSHOR et ux.

v.AMERICAN RY. EXP. CO.

No. 22217.

Supreme Court of Minnesota.

June 24, 1921.

Certiorari from District Court, Hennepin County; Daniel Fish, Judge.

Proceeding by Charles Pushor and wife, as parents of Willard C. Pushor, deceased, for compensation under the Workmen's Compensation Act, against the American Railway Express Company. Judgment dismissing the proceeding, and the complainants bring certiorari. Reversed and remanded, with directions to ascertain the compensation payable to the parents as partial dependents.

Syllabus by the Court

A finding, in form one of fact, but in reality in the nature of a conclusion from specific facts set forth in the preceding findings, is controlled by such specific facts.

Following the construction of subdivision 3, § 8208, Gen. St. 1913, adopted in Fleckenstein Brg. Co. v. District Court, 134 Minn. 324, 159 N. W. 755, it is held that the parents of a minor son, living with them regularly and giving his wages to his mother, to be used in paying the household expenses, are his partial dependents, even though the father's earnings would have been sufficient to maintain the family, if they had not been expended in the purchase of the house which it occupied.

The son was accidentally killed while in the employ of an interstate common carrier by express. Held, that there was liability under the Workmen's Compensation Act, notwithstanding that fact. Mead & Bryngelson and A. D. Evans, all of Minneapolis, for relators.

John W. Gilger and Milton D. Purdy, both of Minneapolis, for respondent.

LEES, C.

Certiorari to review a judgment of dismissal in a proceeding under the Workmen's Compensation Act (Gen. St. 1913, §§ 8195-8230). The trial court found that on October 18, 1918, Willard C. Pushor, then 17 years and 5 months old, was accidentally killed while employed by defendant and engaged in delivering, certain commodities shipped from a state other than Minnesota to the Westinghouse Company in Minneapolis. The transportation and delivery of such commodities constituted a transaction in interstate commerce. Plaintiffs are Willard's parents. Their son's weekly wage, at the time of the accident, was $20. He was living at home, and regularly turned over to his mother all his earnings, and had done so ever since he began to earn money. She paid his living and personal expenses and gave him such small sums for his own use as he required. His father, a painter by trade, was regularly employed during the trade season. At other times he found remunerative employment, and his earnings were sufficient to support himself and his family and to make payments on a house purchased on contract and fully paid for at the time of the trial. The son's earnings, including occasional sums received for boxing exhibitions, were used by the mother for the ordinary family expenses, to which the father also contributed a part of his income, the remainder being applied to meet payments on the contract for the purchase of the house. The mother owns 160 acres of timbered land in Koochiching county and derives some income from the sale of logs and fuel.

[2] Thus far there is no controversy over the findings, both parties being satisfied with them. The final finding is that Willard's parents were never dependent upon him for their living. This finding is assailed by plaintiffs, and was the factor which turned the decision in defendant's favor. Since it is in the nature of a conclusion from specific facts set forth in the preceding findings, we regard it as essentially an inference from and as being controlled by such specific facts. Wheeler v. Gorman, 80 Minn. 462, 83 N. W. 442;Lamberton v. Youmans, 84 Minn. 109, 86 N. W. 894;Thomas Peebles & Co. v. Sherman, 181 N. W. 715. So regarded, we think it cannot be sustained. The statute in force at the time of Willard's death read thus:

‘ Partial Dependents. Any member of a class named in subdivision (3), who regularly derived part of his support from the wages of the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his partial dependent, and payment of compensation shall be made to such dependents in the order named.’ Subdivision, 3a, § 5, c. 209, G. L. 1915 (Gen. St. Supp. 1917, § 8208).

For the purposes of this case the dependents in the order named in subdivision 3 are Willard's mother and father. The statute was construed and applied...