Shaffer v. Williams Bros.

• Decision Date: 07 December 1931
• Citation: 44 S.W.2d 185,226 Mo.App. 635
• Parties: N.W. SHAFFER ET AL., RESPONDENTS, v. WILLIAMS BROTHERS, INC., ZURICH INSURANCE CO., APPELLANTS
• Court: Kansas Court of Appeals

44 S.W.2d 185

226 Mo.App. 635

N.W. SHAFFER ET AL., RESPONDENTS, v. WILLIAMS BROTHERS, INC., ZURICH INSURANCE CO., APPELLANTS

Court of Appeals of Missouri, Kansas City

December 7, 1931

Appeal from Circuit Court of Cooper County.--Hon. W. S. Stilwell Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Roy D Williams and Walter D. Semple for respondents.

Shughart & Johnson for appellants.

OPINION

BLAND J.

This is an appeal by the employer and the insurer from a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of claimants, N.W. and Ada Shaffer, husband and wife. Compensation was claimed and allowed on account of the death of plaintiffs' son, Amuel L. Shaffer.

The facts show that deceased died on November 20, 1930, as a result of an accident received by him on that day arising out of and while in the course of his employment with the defendant, Williams Brothers. At the time of his death he was a few months over twenty-one years of age.

The facts further show that claimants with their eight minor children lived on a twenty-seven acre rented farm near Denning, Arkansas; that claimant, N.W. Shaffer, father of the deceased, at the time of the death of the latter and for sometime prior thereto, had worked as a coal miner making an average wage of between $ 60 and $ 70 per month; that he also farmed, with the aid of his children, forty-five acres of rented ground in addition to the twenty-seven acre tract upon which he lived; that the claimant, Ada Shaffer, devoted all of her time to her household duties; that from June, 1928, until December, 1929, deceased worked in Detroit, Michigan; that during the time of his employment there he sent claimants between $ 35 and $ 40 per month; that this money contributed by deceased to his parents was used by the father in buying groceries, clothing and supplies for claimants and their minor children; that deceased left Detroit in January, 1930, came to the home of claimants and assisted his father in farming and harvesting a crop and doing various farm work; that while helping his father he was paid no wages but his father furnished him spending money; that during the summer of 1930 he contributed the sum of $ 10 to his father which he had made baling hay.

At the conclusion of the harvesting season, about July 26, 1930, deceased left claimants' home and went back to Detroit in search of work but he did not procure employment there. He spent about seven weeks in Detroit and from there went to Tulsa, Oklahoma, where he worked a "day or so" for a candy company. Five days before the death of deceased he obtained employment from the defendant, Williams Brothers, and was working for that company near Boonville when he met with the accident causing his death.

From the time he ceased to work in Detroit in December, 1929, until the day of his death he made no contributions in money to the support of his parents, outside of the $ 10 referred to. From the time he left the farm on July 26, 1930, until the day of his death he had not contributed anything either in work, services or money to their support. The mother testified that deceased stated he was going to help his parents when he found work.

It was stipulated and agreed that the average weekly wage of deceased was $ 20.19 and that the compensation wage was $ 13.46 per week. The commissioner found in favor of claimants and allowed them compensation at the rate of $ 6.69 per week for 300 weeks and in addition thereto $ 150 for burial expenses, which amount had been paid, at the time of the hearing, by defendants. He further made a findings of facts, to the effect, that deceased had contributed his earnings, less his upkeep, to his father and mother prior to his death and that in the opinion of the commissioner he would have continued to do so in the future. He further found that the cost of deceased's room and board at Boonville during the course of his employment by the defendant, Williams Brothers, would have been $ 7 per week and his incidental expenses would have been $ 3 per week, or a total of $ 10 per week; that deceased, had he lived, would have contributed the balance of his average weekly wage, to-wit, $ 10.19 to his parents.

An application for review was duly filed and, upon a review by the full commission, it entered its final award modifying the original award, in that claimants were granted compensation at the rate of $ 6 per week for 273 weeks, the commission finding that the cost of deceased's room and board, while employed by Williams Brothers, would have been $ 7 per week, that a reasonable allowance for his incidental expenses would have been $ 5 per week, making a total of $ 12 per week and that deceased would have contributed the balance of $ 8.19 to his parents.

It is insisted by the defendants that there was no competent evidence in the record to support the finding of the commission as to the extent of the contributions that deceased, had he lived, would have made to the claimants. We think that this contention must be sustained, for the reason that there was no evidence concerning where deceased was living when he was killed, what he agreed to pay for room and board, the reasonable value of room and board in the city of Boonville or the habits of deceased, whether he was frugal, extravagant or otherwise. The record does not disclose how much he earned while working in Detroit, only the amount he sent home. There is nothing in the record from which the commission could find that deceased's board and room would have been $ 7 per week or that $ 5 per week would be a reasonable allowance for his incidental expenses. The amount of the incidental expenses would depend upon deceased's habits or what he was accustomed to spend for this purpose and there is no evidence of this.

Claimants insist that "the failure to introduce evidence as to these facts goes to the mitigation of the award, was a failure upon the part of the appellants, of which failure the respondents do not complain, and the appellants are to be precluded from complaining." No case is cited in support of this contention. We think that, undoubtedly, the burden was upon plaintiffs to show the amount of the contributions deceased would have made to his parents had he lived. [28 R. C. L. 827, sec. 115.]

As the case will no doubt be retried it is necessary for us to pass upon contentions made by defendants.

It is claimed that there is no evidence that claimants actually depended for their support, in whole or in...