Taucher v. Quality Dairy Co.

• Decision Date: 15 September 1936
• Docket Number: No. 24006.,24006.
• Citation: 96 S.W.2d 658
• Parties: TAUCHER v. QUALITY DAIRY CO. et al.
• Court: Missouri Court of Appeals

96 S.W.2d 658

TAUCHER v.QUALITY DAIRY CO. et al.

No. 24006.

St. Louis Court of Appeals. Missouri.

September 15, 1936.

Rehearing Denied September 30, 1936.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Mary Taucher, claimant, for the death of her son, John Taucher, employee, opposed by the Quality Dairy Company, employer, and the Consolidated Underwriters, insurance carrier.From a judgment of the circuit court reversing an award of the Workmen's Compensation Commission denying compensation, the employer and insurance carrier appeal.

Affirmed.

Fordyce, White, Mayne & Williams and G. Carroll Stribling, all of St. Louis, for appellants.

Andrew J. Haverstick, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover the death benefit, under the Workmen's Compensation Act(Mo.St.Ann. § 3299 et seq., p. 8229 et seq.), for the death of John Taucher, resulting from an accident which occurred on May 7, 1934, while he was in the employ of the defendantQuality Dairy Company; said company being insured against liability to its employees by the defendant Consolidated Underwriters.

The Workmen's Compensation Commission found that plaintiff was not actually dependent for support, in whole or in part, upon the wages of the employee at the time of his injury, and disallowed her the death benefit, Commissioner Shaw dissenting.The circuit court on appeal found that the finding of the compensation commission that the plaintiff was not actually dependent in part upon the wages of the employee at the time of his injury was not supported by the evidence, and reversed the award of the commission and remanded the cause.From this judgment of the circuit court, defendants have appealed here.

Defendants contend here that the finding of the commission is supported by substantial competent evidence and is conclusive on appeal, and that the circuit court was without authority to disturb such finding.

There is no substantial dispute respecting the salient facts as shown in evidence.John Taucher's father died on June 16, 1920.He left surviving him the plaintiff as his widow, and five children — Frank Taucher aged fifteen years, John Taucher aged twelve years, George Taucher aged nine years, Mary Taucher aged six years, and Joseph Taucher aged five years.John Taucher at the time of his death was twenty-six years old, Frank Taucher was twenty-nine, George Taucher was twenty-three, Mary Taucher was twenty, and Joseph Taucher was nineteen.

Upon the death of her husband, plaintiff continued the home at 5451 Vera avenue, in St. Louis, for herself and her children, all living together in one household continuously until John's death.The older minor sons worked to earn a livelihood for their mother and their younger brothers and sister, and under the frugal management of the mother the family was able to live.John's earnings always went to his mother, who maintained the home for the family.He had worked steadily at the Quality Dairy Company for four years prior to his death.He regularly took his weekly pay check, for $31.75, home to his mother.Plaintiff never earned any money, but devoted her time to her children and the household duties for the family.That they all so lived together continuously is not denied or questioned by any one.John always lived in the home with his mother and his three brothers and sister.She used his wages which he turned over to her to pay grocery bills and household expenses.He was provided with a home with her, including room, board, washing, ironing, and mending.She usually purchased his clothes.She was afflicted with rheumatism and was down in bed much of the time and unable to work, and was under a doctor's care.She gave John about $3 a week for spending money out of his wages, and had given him back some of the checks and some cash with which he purchased an old automobile in December, 1933, at a cost of $275, and a ring for his fiancée at a cost of $60.He used the automobile very little.He was engaged to marry at some unfixed date in the future.

Plaintiff owned the five-room brick house where she lived with her family at 5451 Vera avenue.She also owned two other old houses on adjoining premises.The streets were off-grade and unimproved, without sidewalks, with an unimproved alley.A project was under way at the time of John's death to improve the streets and alley at a cost of $4,200 to $4,500 to plaintiff.There were no net rents from the property after payment for repairs, insurance, taxes, interest on the...