State ex rel. Valentine Coal Co. v. Trimble

• Decision Date: 03 June 1930
• Docket Number: 29599
• Citation: 28 S.W.2d 1028,325 Mo. 277
• Parties: The State ex rel. Valentine Coal Company et al. v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

28 S.W.2d 1028

325 Mo. 277

The State ex rel. Valentine Coal Company et al. v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 29599

Supreme Court of Missouri

June 3, 1930

Certiorari to Kansas City Court of Appeals.

Writ quashed.

Pingry Nulton & Stevenson, Con Murphy, Jr., and Silvers & Sheppard for relators.

The court erred in holding that the deceased was legally liable for the support of plaintiff, at the time of the injury where the evidence as disclosed by the opinion showed that plaintiff and deceased had been separated for eighteen years prior to the death and failed to show any evidence as to the cause of the separation, and said opinion is in conflict with the controlling decisions of this court and with the well settled law. Audrain County v. Muir, 249 S.W. 383; Porter v. Bobb, 25 Mo. 36; Reese v. Chilton, 26 Mo 598; 30 C. J. 594, 595.

Sylvan Bruner and Mosman, Rogers & Buzard for respondents.

(1) The writ of certiorari was improvidently issued in this case and should be quashed, for the reason that the cases relied upon for the issuance of the writ are not based upon the same or similar facts to the case at bar. State ex rel. Am. Press Co. v. Allen, 256 S.W. 1049; State ex rel. Bradley v. Trimble, 316 Mo. 97, 289 S.W. 922; State ex rel. Winters v. Trimble, 315 Mo. 295, 290 S.W. 115. (2) The Court of Appeals had a right to place its own interpretation upon the statute in the absence of a prior controlling construction placed on the same statute by this court, and certiorari will not lie to correct the construction or interpretation of a statute by the Court of Appeals, even though such construction or interpretation be erroneous. State ex rel. Tummons v. Cox, 313 Mo. 672, 282 S.W. 694. (3) The opinion in construing Section 21 of the Workmen's Compensation Act determines that under said act the widow of a deceased employee is a dependent within the meaning of the act where the evidence shows that there was a separation by mutual consent, and under such circumstances, in construing the act, the opinion holds that the husband is legally liable for the support of the wife. Such ruling is in conformity with the latest controlling decision of this court. Reese v. Chilton, 26 Mo. 598. (4) The cases relied upon by relator are not based upon the same or similar facts involved in this controversy and do not announce a ruling upon a proposition of law in conflict with respondents' opinion.

OPINION

Walker, J.

This is an original proceeding in certiorari to compel the respondents to send up the record in the case of Laura B. Cotter against the Valentine Coal Company and the Consolidated Underwriters. It is based upon the ground that the opinion of the respondents, the Kansas City Court of Appeals, is in conflict with the last controlling decision of the Supreme Court on the proper construction to be given to Section 21 of the Missouri Workmen's Compensation Act, and particularly that part of the same defining the word "dependent," as follows:

"The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee in the following order and any death benefit shall be payable in the following order, to-wit: 1. A wife upon a husband legally liable for her support." [Subdivision "d," paragraph 1, Sec. 21, Laws 1925, p. 388.]

The record discloses that the original action was one by the widow of a deceased employee of the Valentine Coal Company, sounding in damages for the death of her husband through the alleged negligence of the Coal Company. Upon a submission of her claim to the Workmen's Compensation Commission the latter held, under the facts, that she was not a dependent within the meaning of the act. Upon an appeal to the Circuit Court of Bates County the finding of the Commission was affirmed. The judgment thus rendered was, upon an appeal, reversed and remanded by the Kansas City Court of Appeals. Upon its ruling is the averment of a conflict based.

The facts as disclosed by the opinion consist of the testimony alone of Laura B. Cotter, the plaintiff in the original action. They are, in effect as follows; that she and the deceased lived together as husband and wife for about eighteen years, at the end of which period they separated while living in Kansas; that no children were born of their marriage; that thereafter the plaintiff and her daughter, by a former marriage, were employed in a store in Pittsburg, Kansas, for about eight years; that afterwards the daughter married and that the plaintiff lived with and was supported by her, the deceased contributing nothing to her support; that when the separation from the deceased occurred that he, taking his belongings, left her and went to live with a sister; that upon leaving the plaintiff he said: "If you ever need any money ask for it and if I have it you shall have it;" that he would help her; that although she needed money during the eighteen years transpiring between their separation and his death, she never asked him for any; that she never needed it badly or she would have asked him for it; that during the years of their separation she had nothing to do with him; that while she was living in Pittsburg, Kansas, when the accident occurred which ultimately resulted in his death, she did not communicate with or visit him to ascertain his condition, as she supposed he did not wish to see her. Neither party had ever sought to procure a divorce.

I. The determination of the existence of the alleged conflict is the limit of our jurisdiction in cases of this character. A constitutional provision (Sec. 6, Art. 6, Amend. 1884) fixes this limitation. To ascertain, therefore, if a conflict exists a comparative analysis of the Supreme Court ruling and that of the Court of Appeals becomes necessary, limiting our review of the latter to the language of the opinion.

The core of this controversy is the interpretation given by the Court of Appeals to...