Ricks v. H. K. Porter, Inc.

• Decision Date: 10 March 1969
• Docket Number: No. 53031,No. 2,53031,2
• Citation: 439 S.W.2d 164
• Parties: Lawrence T. RICKS, Dependent of Henry Crawford, Deceased, Appellant, v. H. K. PORTER, INC., Respondent
• Court: Missouri Supreme Court

Page 164

439 S.W.2d 164

Lawrence T. RICKS, Dependent of Henry Crawford, Deceased, Appellant, v. H. K. PORTER, INC., Respondent.

No. 53031.

Supreme Court of Missouri, Division No. 2.

March 10, 1969.

Motion for Rehearing or to Modify or to Remand to Industrial

Commission Denied April 14, 1969.

Norbert M. Reker, Warren Grauel, St. Louis, for appellant.

Robertson, De Voto & Wieland, Leo C. De Voto, Jr., St. Louis, for respondent.

HENRY I. EAGER, Special Commissioner.

This proceeding involves a claim under our Workmen's Compensation statutes for benefits on account of the death of Henry Crawford. The referee awarded to the claimant payments which were the equivalent of $16,500, in addition to allowing the burial expense. The Industrial Commission reversed, awarding no compensation. The Circuit Court affirmed the award of no compensation. Under our ruling in Gennari v. Norwood Hills Corp., Mo., 322 S.W.2d 718, we have jurisdiction because of the amount involved, even though the award was made payable in installments.

There are no issues here concerning such formalities as notice, the filing of claim, weekly wage, etc.; also, it is conceded that the deceased employee, Henry Crawford, died on July 12, 1963, while an employee of H. K. Porter, Inc., because of an accident arising out of and in the course of his employment. The claimant, Lawrence T. Ricks, was a stepgrandson of the deceased. The questions involved are: (1) was claimant a relative by marriage of the deceased at the time of his death? And (2), was he 'actually dependent' for support, in whole or in part upon deceased's wages? § 287.240(4) RSMo 1959, V.A.M.S.

It has been stated by appellant that there is no dispute about the facts, but we note that there is at least a substantial dispute about the inferences to be drawn from the evidence. The claimant, Lawrence T. Ricks, was born on September 22, 1942, and thus was 20 years, 9 months and 20 days old at the date of the employee's death. His father and mother were divorced in 1953, and his custody was then granted to his paternal grandmother, Edith Crawford. As a matter of fact he had been living with Edith Crawford and her husband, the deceased employee, since his infancy. The grandmother and Mr. Crawford were married on November 7, 1942, soon after the claimant's birth. Mrs. Crawford died on June 30, 1963, 12 days before the death of her husban; at that time she was still his wife. They had no children.

Claimant had continued to live with the Crawfords from his infancy until their respective deaths. It was agreed that he was not physically or mentally incapacitated from 'wage earning.' At the hearing before the referee on June 17, 1965 he testified: that he was then in the Army stationed at Ft. Bragg, North Carolina, having been drafted 14 months earlier; that both his parents were still alive (but divorced) and that they lived in St. Louis; neither had ever lived with the Crawfords; that his parents had never supported him, and that his sole support was Mr. Crawford, the deceased employee; that Mrs. Crawford worked only as a housewife; that he had attended and completed grade school and also attended Vashon High School in St. Louis when he finished 'termica' education in 1959, but that he did not 'exactly graduate.' (We note here that we fail to see why someone, counsel or referee, did not ask for a more complete explanation of this unusual term, if indeed the word is correctly transcribed). Claimant had been employed by the Pearl Paint Company for a period of 3 months at some time before the death of deceased, earning $30 a week; apparently that work was in the summer of 1962; he had been able to handle that job 'satisfactorily.' He testified further: that he spent the money thus earned 'on himself' and paid nothing for room and board; that he quit that job voluntarily because, he said, he was working 16 hours a day, 'couldn't take it,' and that he was 'not satisfied with the conditions'; that he had applied for work at other places, including 'Chevrolet,' 'these hospitals' (further unexplained) and 'other places'; that no one would hire him; that he also went to the 'Missouri Unemployment Service,' but that they found him nothing; that he had passed the tests given for induction into the Army, both mental and physical, and had become a P.F.C. After the death of Mr. Crawford the father of claimant, who was getting a 'relief' check of $70 each month, came to live with him and they both lived on this until claimant went into the Army in March 1964. We note here that the referee said to claimant: 'Well, you appear to be a nice looking, intelligent young man.'

The referee, as already noted, found that claimant was 'solely and fully dependent' upon the deceased for support, although the latter was under no legal obligation to support him; he further ruled that claimant was a 'relative by marriage' of the deceased. That finding of dependency seems actually to have been more or less of an assumption derived from the fact that claimant was actually being supported by the deceased. The Industrial Commission, with no dissent, and after noting the substance of the above facts, found: that the facts were 'not convincing that he (claimant) was or should have been a dependent of the deceased employee, at the time of the injury. * * * he was a grown young man and had no mental or physical impairment that would incapacitate him from wage earning. Ricks was not dependent upon Mr. Crawford for support but was merely staying with him.' It further found: that Ricks was more able to work and support himself than his stepgrandfather was to support him; that he 'owed it to himself to use his strength, energy and young body to work and thereby by procure necessary financial resources to sustain himself in a manner befitting his class and station in life * * *; that Lawrence T. Ricks was not actually dependent on the wages of deceased employee for support * * *.'

The Commission indicated, without expressly so ruling, that a stepgrandson was not a relative by marriage under the Missouri decisions, but that, being a conclusion of law, is immaterial upon our present review. The Commission did state that, since the facts were undisputed, the question of dependency was one of law. We do not entirely agree with that conclusion, and the Commission itself did not strictly follow it, for it proceeded to make findings of fact as already indicated. And even if the facts were undisputed it was the duty of the Commission to draw from those facts all reasonable inferences which were essential to a determination.

Section 287.240(4) RSMo 1959, V.A.M.S., is in part as follows:

'The word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his wages at the time of the injury.'

The statute then lists those persons who are conclusively presumed to be totally dependent, including a wife, and a 'natural, posthumous, or adopted child or children, * * * under the age of eighteen years,' or over that age if 'physically or mentally incapacitated from wage earning * * *.' In other cases the question of total or partial dependency 'shall be determined in accordance with the facts * * *.'

It is obvious here that claimant is not one of those conclusively presumed to be a dependent and dependency here must be decided in accordance with the facts. If he was not a dependent it will not be necessary to consider whether he was 'related by marriage' to the deceased, for both conditions must exist to support an award.

It is hardly necessary to reiterate all the oft-stated principles applied in our review of Workmen's Compensation cases. It will suffice to say that findings of the Commission are binding on the reviewing court if supported by competent and substantial evidence and if not contrary to the overwhelming weight of the evidence. Ginter v. Freund Baking Co., Mo.App., 388 S.W.2d 505, and cases there cited; Bauer v. Independent Stave Co., Mo.App., 417 S.W.2d 693; Miranda v. American Refrigerator Transit Co., Mo.App., 392 S.W.2d 413; Lashbrook v. Clipper Mfg. Co., Mo.App., 377 S.W.2d 785. And the court must view the evidence in the light most favorable to the prevailing party. Lashbrook and other cases cited. The Commission passes upon the credibility of the witnesses and upon the weight of any and all testimony, and it may decide a case upon its disbelief of uncontradicted and unimpeached testimony. Bauer v. Independent Stave Co., supra; Ginter v. Freund Baking Co., supra; Miranda v. American Refrigerator Transit Co., supra; Snowbarger v. M.F.A., Mo., 349 S.W.2d 224; Raef v. Stock-Hartis, et al., Mo.App., 416 S.W.2d 201; Damore v. Encyclopedia Americana, Mo., 290 S.W.2d 105; Lawson v. Lawson, Mo.App., 415 S.W.2d 313; Garner v. Research Clinic, Mo.App., 280 S.W.2d 416. In reviewing such cases, we view the whole record and consider the inferences which the Commission may reasonably have drawn from the evidence. Sundry cases have applied these principles to the findings and determinations of the Commission, as distinguished from those of the referee, and in instances where such findings and decisions have been adverse to those of the referee. Ginter, Miranda and Lashbrook, supra. The question of 'actual dependency' under our statute is a question of fact and compensation may be denied by the Commission for a failure of the claimant, who has the burden of proof, to establish such dependency. Ashwell v. U.S. Seed Co., Mo.App., 167 S.W.2d 950; Kemmerling v. Karl Koch Erecting Co., 338 Mo. 252, 89 S.W.2d 674; Bauer v. Independent Stave Co., supra.

The Missouri cases have not dealt extensively with definitions of 'dependency' or 'actual dependency,' at least not in the circumstances of this case. In Elihinger v. Wolf House...