Triola v. Western Union Telegraph Co.

• Decision Date: 11 March 1930
• Parties: SALVATORE AND JOSEPHINE TRIOLA, DEPENDENTS OF ANGELO TRIOLA, DECEASED, (CLAIMANTS), RESPONDENTS, v. WESTERN UNION TELEGRAPH COMPANY, A CORPORATION (EMPLOYER-SELF-INSURER), APPELLANT
• Court: Missouri Court of Appeals

25 S.W.2d 518

224 Mo.App. 258

SALVATORE AND JOSEPHINE TRIOLA, DEPENDENTS OF ANGELO TRIOLA, DECEASED, (CLAIMANTS), RESPONDENTS, v. WESTERN UNION TELEGRAPH COMPANY, A CORPORATION (EMPLOYER-SELF-INSURER), APPELLANT

Court of Appeals of Missouri, St. Louis

March 11, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. Moses N. Sale, Judge.

AFFIRMED.

Judgment affirmed.

Jones Hocker, Sullivan & Angert and Warren F. Drescher, Jr., for appellant.

(1) The findings of the commission must be sufficient to support the award, and the award must be supported by sufficient competent evidence. Smith v. Levis-Zukoski Mercantile Company et al., 14 S.W.2d 470; Lowe Co. v Industrial Commission of Utah, 190 P. 934; Smith v National Sash & Door Company, 96 Kans. 816, 153 P. 533; Herrick Case, 217 Mass. 111, 104 N.E. 432; In re Kelly's Case, 222 Mass. 538, 111 N.E. 395; Wolz et al. v. Holbrook, Cabot & Rollins Corporation, 170 A.D. 6, 155 N.Y.S. 703. (2) Where employee, a minor, is killed in an accident arising out of and in the course of his employment, and prior to his death he has regularly contributed all of his wages to a general family fund handled by his parents, who also have other sources of income, the parents, if dependency at all is proven, are only partially dependent upon the minor to an extent proportionate to the percentage of his contribution as same relates to the general family income. Missouri Workmen's Compensation Act, secs. 21 (b) and 21 (c), (Laws of Missouri 1927, page 503); Inter-Lake Pulp & Paper Co. v. Imm et al., 202 N.W. 175; London Guarantee & Accident Co. Ltd. v. Industrial Accident Commission of California et al., 260 P. 355; Michael et al. v. Jacob Dold Packing Company, 244 P. 1050; Aetna Life Insurance Co. v. Smith, 29 Ga.App. 628, 116 S.E. 322; Hamilton et al. v. Texas Co., 151 La. 692, 92 So. 301; State ex rel. Ernest Flackenstein Brewing Co. v. District Court of Wright County, 134 Minn. 324, 159 N.W. 755; John M. Smyth Co. v. Industrial Commission et al., 306 Ill. 171, 137 N.E. 519; Little v. Crow-Edwards Lumber Co., 121 So. 219; Geo. A. Lowe Co. et al. v. Industrial Commission of Utah, 190 P. 934. (3) Where the injury is caused by the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, which rule has been kept posted in a conspicuous place on the employer's premises, of which the employee had actual knowledge of said rule so adopted by the employer, and which rule the employer had prior to the injury made a diligent effort to cause his employees to obey or follow, then a fifteen per cent reduction should be made in any award given by way of compensation or death benefit. Missouri Workmen's Compensation Act, section 3 (Laws of Missouri 1927, p. 500); Smith v. Corson, 87 N.J.L. 118, 93 A. 112; Reimers v. Proctor Publishing Co., 85 N.J.L. 441, 89 A. 937; Hopley v. Pool, 8 B. W. C. C. 512; Griggs v. Steamship Gamecock, 6 B. W. C. C. 15.

Gerritzen & Gerritzen for respondents.

(1) The findings of the commission are sufficient to support the award and the award is supported by sufficient competent evidence. Section 44 of the Act (Laws 1927, page 512); Kiser on Workmen's Compensation Acts (40 Cyc. par. 127); 2 Schneider on Workmen's Compensation, par. 561; Elizabeth Patrick v. J. B. Ham Company et al., 111 A. 912; Steel Sales Corporation, Plaintiff in Error v. Industrial Commission of Illinois et al., 203 Ill. 435, 127 N.E. 698; Western Indemnity Company v. State Industrial Commission et al. (Okla.), 219 P. 147. It is conceded by appellant that Angelo Triola came to his death by accident arising out of and in the course of his employment and therefore, there can be no sound argument advanced against the propriety of the parents' right to be compensated, absent proof of intentional, self-inflicted injury. (2) Where an employee, an unmarried, unemancipated minor, living with and under the custody and control of his parents, is killed in an accident arising out of and in the course of his employment, and prior to his death, he regularly contributed all of his wages to his parents, who had another source of income from another son and who, in turn furnished the employee with maintenance and support, and the parents actually needed all of the employee's wages for the support of themselves and their family, are conclusively presumed to be total dependents for support upon a deceased employee. Section 21 (d) of the Workmen's Compensation Act (Laws of Missouri, 1927, p. 503); Wisconsin Drainage Co. v. Ganzer, 152 N.W. 460-461; Cowen, taken from the Industrial Commission of Ohio, case No. 94,164, reported August 15, 1915; Murphy v. Bigelow, 105 N.E. 635; Peoples' Hardware Company v. Croke, 118 N.E. 314; Rogers v. Dow Chemical Company, National Compensation Journal of June, 1917, Vol. 6, par. 275, in the Negligence Compensation Cases Annotated; Mahoney v. Gamble, Desmund Company, 90 Conn. 255, 96 A. 1025, Vol. 13, page 315, Negligence Compensation Cases Annotated; Hodgson v. Owners of West Stanley Colliery, Butter Worth Compensation Cases, Vol. 3, page 260, reversing the decision of Court of Appeals in 2 B. W. C. C. 275; Garcia v. Industrial Accident Commission, 171 Cal. 57, 151 P. 741; Blanton v. Wheeler & H. Co., 91 Conn. 226, 99 A. 494; Rudwick v. White Bros., 7 Boyce 576, 109 A. 881; Rockford Cabinet Co. v. Industrial Commission, 295 Ill. 332; Carroll, 65 Ind.App. 146; McDonald v. Employers' Liability Assurance Corp., 112 A. 719; Coakley's Case, 216 Mass. 71, 102 N.E. 930; Miller v. Riverside Storage & Cartage Co., 189 Mich. 360; Miller v. Public Service R. Co. (New Jersey), 84 N.J.L. 174; Watz v. Holbrook, C. & R. Corp., 155 N.Y.S. 703; Jackson v. Industrial Commission, 164 Wis. 94; England, Simms v. Lilleshall Colliery Co., W. C. & Ins. Rep. 218; Driscoll v. Jewell Betting Co., 96 Conn. 295; McCormick v. Central Coal & Coke Co., 117 Kan. 686. (3) Missouri Workmen's Compensation Act, section 3 (Laws of Missouri, 1927), page 493 (not page 500 as cited in appellant's brief), provides that "where the injury is caused by the willful failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employee, which rule has been posted in conspicuous places on the employer's premises, the compensation and death benefit provided for herein shall be reduced fifteen per cent," etc. And ending with this significant provision: "And provided, further, that the employer, at and prior to the injury, made a diligent effort to cause his employees to use safety device or devices and to obey or follow said rule so adopted for the safety of said employee." The language of section 3 of the Act has no application whatever to the undisputed facts in the controversy and in our opinion is untenable. Beaudry v. Watkins, 191 Mich. 445; Allan v. Glenborg Union Fire Clay Co., S.C. (Scot.) 967; Praties v. Broxburn Oil Co., S.C. (Scot.) 581; Beasman v. Butler, 105 A. 409; Nickerson's Case, 218 Mass. 158, 105 N.E. 604; Leishmann v. Dixon, S.C. 498, 3 B. W. C. Co. 460.

NIPPER, J. Haid, P. J., and Becker, J., concur.

OPINION

NIPPER, J.

This action was instituted before the Workmen's Compensation Commission, by claimants, who are the parents of Angelo Triola, seventeen years old, deceased, against the Western Union Telegraph Company, employer of Angelo Triola.

The claim alleged that Angelo Triola died as a result of injuries received when a bicycle on which he was riding was struck by a truck, the property of the Ragland Transfer Company, Greenville, Illinois. The total amount of compensation claimed was $ 3,048, being the maximum penalty allowable.

In the answer filed, all the statements in the claim for compensation were admitted, except that it is alleged that deceased was injured while violating a city ordinance of the City of St. Louis, and when failing to obey a reasonable rule adopted by the employer, of which the employee had notice, said ordinance making it unlawful to ride a bicycle upon the city sidewalk, and said rule of the employer also requiring its employees not to ride bicycles upon city sidewalks.

Upon a hearing before the commission the claimants were allowed the full amount asked for, subject to a credit of $ 150 for burial expenses. An appeal was taken to the circuit court, where the award of the Commission was affirmed, and the appellant has brought the case here.

The facts of this case are undisputed. Angelo Triola, the deceased, was seventeen years old, and died as a result of injuries received November 5, 1927, in an accident arising out of and in the course of his employment with his employers, Western Union Telegraph Company, while riding a bicycle on a sidewalk in the City of St. Louis, when he was struck by the truck heretofore referred to. The employer paid the expenses of the burial of the boy in the amount of $ 150. No compensation was paid the boy's parents because there was a question as to the extent of their dependency upon deceased employee. The facts show that at the time of the death of Angelo Triola, his father was earning an average weekly wage of $ 22.80; the deceased's brother was earning an average weekly wage of $ 21, and the deceased was earning an average weekly wage, at the time of the accident, of $ 15.24. The family consisted of ten members. The three working members being the father and the two sons mentioned. The total family income made up by the wages of the father and two boys amounted to $ 59.04 per week.

The case was tried in the court below, and in this court it was argued and briefed by counsel for claimants, upon the theory that the claimants were total dependents of deceased, and, therefore, entitled to the...