Smith v. The National Sash & Door Company

• Decision Date: 11 December 1915
• Docket Number: 20,396
• Citation: 153 P. 533,96 Kan. 816
• Court: Kansas Supreme Court
• Parties: LILLIAN SMITH, Appellee, v. THE NATIONAL SASH & DOOR COMPANY, Appellant

153 P. 533

96 Kan. 816

LILLIAN SMITH, Appellee, v. THE NATIONAL SASH & DOOR COMPANY, Appellant

No. 20,396

Supreme Court of Kansas

December 11, 1915

Decided July, 1915.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WORKMEN'S COMPENSATION ACT -- Death of Son -- "Dependent"--Evidence. The plaintiff's son, eighteen years old, living with her and her husband, turned over to her his wages, paying nothing for his board, room or laundry but obtaining from her money for his expenditures. Although she was supported by her husband she had required certain medical and surgical attention, the expenses of which were paid in part by the deceased, and his wages were always available by her for such attention, all of which extra expense could be met only by using a portion of his earnings. Held, that she was partly dependent upon the son and could recover under the workmen's compensation act on account of his death.

Thomas E. Wagstaff, of Independence, Adrian F. Sherman, and Thad B. Landon, both of Kansas City, Mo., for the appellant.

A. R. Lamb, of Coffeyville, for the appellee.

OPINION

WEST, J.

This case is before us on the motion of the plaintiff to dismiss the appeal because it involves no doubtful question of law. But one vital question is presented--that of dependency--and as the matter has been fully briefed and argued on the motion it amounts to a final submission of the case on the merits and will be so considered, as the parties have so treated it.

The plaintiff recovered as being partly dependent on her son, Arthur Lake, who was killed while working in the defendant's glass plant. He was eighteen years old, illegitimate, and had been earning eleven dollars a week. The third finding of fact was in substance that when Arthur was about four years old his mother married her present husband and has lived with him ever since; that until about two years prior to his death the boy had made his home with his grandmother, but about that time he began making his home with his mother; that the household consisted of the plaintiff, her husband, and this son; that at the time of his death she and her husband were living in a five-room house, paying ten dollars a month rental; that since the death she has received her support and maintenance from her husband, who has continued to pay therefor, furnishing the same house as before, "and that previous to the date of the death of the said Arthur Lake, the plaintiff was supported by her said husband, L. N. Smith, who at the time of the trial and for years prior thereto was receiving the sum of sixteen and 50/100 ($ 16.50) dollars per week as his wages; and was a well, able-bodied man. That after the said Arthur Lake made his home with the plaintiff and her said husband, he turned over his wages each week to plaintiff, and also the husband turned over his wages each week to the plaintiff. That plaintiff was an invalid and had required surgical operations, the expenses of which were paid in part by the deceased, and the money of deceased left with the plaintiff each week was always available by plaintiff for medicines and surgical services, and all of these extra expenses could be met only by using a portion of deceased's earnings. That deceased paid no board or room rent and paid nothing for his laundry bill, but would obtain money for his expenditures from the plaintiff in this case. That at the time of Lake's death, the deceased was engaged to be married to a girl at Coffeyville, such marriage to occur the following October, 1914." The judgment was based on the conclusion that the plaintiff was in part dependent upon the earnings of the deceased to the extent of one-half his earnings.

The language of the statute is:

"'Dependents' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. And 'members of a family' for the purposes of this act means only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents and grandparents, or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include step-parents, children include step-children, and grandchildren include step-grandchildren, and brothers and si...