Texas Employers' Ins. Ass'n v. Peterson

• Decision Date: 02 May 1923
• Docket Number: (No. 2139.)
• Citation: 251 S.W. 572
• Parties: TEXAS EMPLOYERS' INS. ASS'N v. PETERSON et ux.
• Court: Texas Court of Appeals

Page 572

251 S.W. 572

TEXAS EMPLOYERS' INS. ASS'N v. PETERSON et ux.

(No. 2139.)

Court of Civil Appeals of Texas. Amarillo.

May 2, 1923.

Rehearing Denied May 23, 1923.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Proceedings under the Workmen's Compensation Law by Charles P. Peterson and wife, claimants, opposed by the Texas Employers' Insurance Association. Judgment for claimants, and defendant appeals. Affirmed.

Lawther, Pope & Leachman, of Dallas, and Davenport, Wilson & Thornton, of Wichita Falls, for appellant.

Weeks, Morrow & Francis, of Wichita Falls, for appellees.

KLETT, J.

The Texas Employers' Insurance Association has appealed from a judgment rendered by the district court of Wichita county in favor of appellees, Charles P. Peterson and wife, Eddie Peterson, for a lump sum compensation allowed them as dependents of their son, Rufus A. Peterson, who was killed while in the employment of the Gulf Production Company. The appellant questions the sufficiency of the evidence to support the affirmative answer of the jury to the following special issues submitted to the jury:

"(1) Were the claimants, Charles P. Peterson and Mrs. E. Peterson, as parents of Rufus Peterson, deceased, taking into consideration their condition and circumstances in life, dependent upon the labor of the deceased, Rufus Peterson, for support at the time of the injury which resulted in Rufus Peterson's death?

"(2) Would a failure of the insurance association to make a lump sum settlement with claimants of the compensation, if any due them on account of the death of their son, Rufus Peterson, work a manifest hardship and injustice to them?"

Rufus Peterson was an unmarried son, 25 years of age, and living with his father and mother up to the time of his death on April 12, 1920. He and his father were working for the Gulf Production Company, each earning about $150 per month as laborers. The father started working for this company about 1918. Prior to that time the family lived at Rochester, Tex., where the mother remained until the fall of 1919, when she joined her husband and son in making their home on the company's lease about 10 miles north of Iowa Park. When the mother came the father bought some lumber on credit and built a small four-room shack on the lease. The son lived in this house with his parents until his death. The father testified that the son made substantial contributions to the support of the family; that the son purchased two milk cows, only one of which supplied milk at the time of the boy's death; that although wages were good, living expenses at that time were high, especially in the oil field; that the grocery bill was probably $100 per month; that it cost $15 per month to feed the milk cow; that in September, 1919, the son gave the father a check for $50 to pay for money borrowed at Rochester to go out to the oil fields; that the father, who was "badly broke" at Rochester, was out of work and could not get a job; that the son paid dues and fees for his mother and father in the Odd Fellows, Rebeccah, and Woodmen Lodges; that the checks exhibited in evidence were given by the son for the support of the family; that the son frequently gave the father and mother cash and checks for living expenses; that the father used the son's money whenever needed; that the son bought clothing for his mother, bought anything she wanted to get, although she did the buying; that she traded with Sears & Roebuck and also Montgomery Ward; that she bought clothes, hats, shoes, dresses, cloak goods, underwear, and some furniture, "all the time, every year"; that the son furnished the money. With reference to the checks the father testified:

"Those different checks you now hand me bear the signature of Mr. Rufus A. Peterson; those were his signatures on those checks. Yes, sir; those are his signatures on his checks. Yes, sir; I know what those checks were issued for by him; they were issued by him for supplies, for necessities to go on with; that is part of the money he paid out for our support; that is money paid for material and supplies purchased by him. Besides being different supplies which those checks represent, he furnished cash about every month."

Mr. Peterson also stated that the cash contributed by his son ran from $25 to $50 per month. Concerning the family income and expense Mr. Peterson added:

"Yes, sir; it took approximately our joint earnings to keep up the family. As I stated, I had $600 or $700 in the bank when he died. It taken all of that and more too to bury him. That is gone; yes, sir. I have nothing left; no, sir; have no home in Electra. * * * Aside from the money and expenses that my son incurred while he lived with us, it is not a fact that I was able to provide for myself and wife according to my class and position in life from my working money. Well, no sir; not while I was with the Gulf Production Company. No, sir; I did not have sufficient money from my work to take care of myself and wife. Been several times he had to help me to take care of my wife and his sister. Well, he would give me $15, $20, and $25 a month, sometimes $50. No, not to just take care of his sister. $50 was the most he ever gave me a month as I stated to you this morning; gave me that on several different occasions. As I stated this morning, we never kept any record of anything. It was not necessary. He was a home boy."

There was also testimony by the father that the boy was industrious and frugal, but we find nothing in the record showing that the boy had accumulated any money or had any bank balance. It was shown that at the time of the son's death the father had a bank balance of $907.99; that the fund had gradually grown since the father started the account until the son's death, but that since the son's death the account had become smaller and smaller; that on the date of the trial the balance was $162.31. Mr. Peterson stated at the time of trial (October, 1921) that he could not work then on account of his left leg, which was injured about two years previous while working on the lease; that he was able to do the work as pumper because his fellow workmen were kind and good to him and assisted him; that he could still do the same work if he had the same helper, although he worked when he was not able to do so; that about a year after his son's death the company released him without explanation, and that since then he has not been able to get employment; that he was not able to do lifting or much walking; that his wife had been in bad health for several years; that he had no home and was then paying $20 per month rent in Electra; that he did not see how he could keep himself and wife on a weekly compensation of $15; that he had no funds on hand with which to buy a chicken farm, but if the money were paid in lump sum he could buy a chicken farm, reduce his expenses, and earn a living for himself and wife.

Mrs. Peterson, the mother, testified that the son contributed from $25 to $50 to the support of "my husband and I." She also undertook to explain some of the checks introduced in evidence. She declared that they were signed by her son; that one was for an incubator purchased for her by the son, at Christmas time in 191...