Opinion
Opinion filed February 17, 1930. Rehearing denied March 27, 1930.
1. — Master and Servant. In action under Workmen's Compensation Act (Laws of 1927, p. 490) by parents to recover compensation for death of son as partial dependents and evidence established that all the father's wages and all that the son contributed was used for and was necessary for support of the family, held sufficient showing to sustain finding of commission that parents were partial dependents.
2. — Workmen's Compensation Act — Cost of Boarding and Keeping of Deceased Minor. There is no provision in Workmen's Compensation Act of 1927 for deducting the cost of boarding and supporting deceased minor employee and commission in fixing the amount to be awarded parents as partial dependents was not required to deduct for such boarding and keeping of minor child.
3. — Same. It is the duty of the court in passing on Workmen's Compensation Act of 1927 to liberally construe such act for public welfare and should not write in said act, by construction, provisions which are not written therein but which might affect rights of parties.
4. — Same. Where a minor son who contributed so much per week to support of family and he gave such money to his mother who placed it in the common fund and it was used together with money furnished by father for support of entire family, held it was not error for compensation commission to make allowance to father and mother jointly as tenants by entirety.
5. — Same. A father is primarily liable for support of family but under section 371, R.S. 1919, a mother is also liable and award made by compensation commission to both parents jointly as partial dependents of a deceased minor son was proper.
Appeal from Jasper County Circuit Court, Division Number One. — Hon. R.H. Davis, Judge.
AFFIRMED.
Edgar Fenton, H.R. Palmer, Clarence Craig and George V. Farris for appellants.
(1) Respondents were not dependents and not entitled to the award as made. Workmen's Compensation Act, sec. 21, par. (d); Laws of Mo. 1925, p. 388; 1 Schnider on Workmen's Compensation, p. 898; Miller v. Riverside S. C., 153 N.W. 465, 189 Mich. 360; Donovan v. Holly Cross Cemetery, 1 Cal. Ind. Com. Rep. 37. (2) Even if it should be found that respondents were partially dependents the commission in fixing the amount of award should have deducted the reasonable cost of boarding and keeping said deceased minor employee. Engberg v. Victoria Copper Mining Company, N.W. 840, 201 Mich. 570; Federal Mutual Liability Co. v. Ind. Accident Comm., 199 P. 796; Moll v. City Bakery, 165 N.W. 6495, 199 Mich. 670; Milwaukee Basket Co. v. Weicki, 181 N.W. 308, 173 Wis. 391; Pushor v. Am. Ry. Express Co., 183 N.W. 839, 149 Minn. 308; State ex rel. E. Fleckenstein Brewery Co. v. District Ct., 159 N.W. 755, 134 Minn. 324; Utah Fuel Co. v. Ind. Com., 245 P. 381; Paul v. State Ind. Acc. Com., 272 P. 267; Clover Fork Coal Co. v. Ayers et al., 292 S.W. 803. (3) The record shows that the deceased employee made all contributions to his mother, Ola Clingan, and that no contributions were ever made to the respondent Eugene Clingan, so that any award to Eugene Clingan was erroneous. Kelse Branch Coal Co. v. Spradling, 300 S.W. (Ky.) 892. (4) The Missouri Workmen's Compensation Commission had no authority to make an award to respondents as tenants by the entirety and in so doing said commission acted in excess of its powers. Laws of Mo. 1925, p. 388; In re Pagoni, 118 N.E. 948, 230 Mass. 9. (5) There was not sufficient competent evidence before the commission to warrant the making of an award to respondent. Pushor v. Am. Ry. Express Co. and Utah Fuel Co. v. Industrial Comm., supra.
J.D. Harris for respondents.
(1) The finding of the commission on an issue of fact has the force and effect of a verdict of a jury, and where there is substantial evidence to support the same its finding will not be disturbed on appeal, and the appellate court will look only to the evidence which is most favorable to support such finding, and the court will draw every reasonable inference from the evidence to that end. Cotter v. Valentine Coal Company, 14 S.W.2d 660, l.c. 662; Smith v. Levi-Zukoski Mercantile Co., 14 S.W.2d 470, l.c. 472; State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen's Compensation Commission, 8 S.W.2d 897, l.c. 899. (2) It is not essential to constitute partial dependency that the contribution should be in cash or absolutely necessary to support life. The contributions toward the reasonable comforts and conveniences of life are sufficient where relied upon by the recipients. Gonzales v. Chino Copper Co., 222 P. 903; Lumbermen's Reciprocal Assoc. v. Warner, 245 S.W. 664; Burns v. Conn. Light Power Company, 97 Conn. 688, 118 A. 45; Pushor v. Am. Ry. Express Co., 149 Minn. 308, 183 N.W. 839; Chicago W. F. Coal Co. v. Industrial Commission, 303 Ill. 540, 135 N.E. 784, 28 R.C.L. 779. (3) Where compensation is sought by the parents for the death of a minor son who lived in the parent's family as a member thereof, and contributed his earnings for the support of the family, the cost of the support of such minor should not be deducted from his earnings in determining the amount that should be awarded to the dependents. This doctrine is supported and sustained by abundant authority in the states having Workmen's Compensation. In re Peters, 65 Ind. App. 174, 116 N.E. 848; Richardson Sand Co. v. Industrial Commission, 291 Ill. 167, 129 N.E. 751; Chicago W. F. Coal Co. v. Industrial Commission, 303 Ill. 540, 135 N.E. 784; Peabody Coal Co. v. Industrial Commission, 311 Ill. 338, 143 N.E. 90; Peoples Hardware Co. v. Croke, 66 Ind. App. 340, 118 N.E. 314; Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 A. 1025, L.R.A. 1916E, 110; Metal Stamping Corp. v. Industrial Commission, 285 Ill. 528, 121 N.E. 258; Day v. Sioux Falls Fruit Company, 43 S.D. 65, 177 N.W. 816; Conners v. Public Service Electric Co., ___ N.J.L. 99, 97 A. 792; Colucci v. Edison Portland Cement Co., 93 N.J.L. 332, 108 A. 313; Southern Surety Co. v. Hibbs, 221 S.W. 303; Bloomington-Bedford Stone Co. v. Phillips, 65 Ind. App. 189, 116 N.E. 850; McIntire v. Department of Labor Industries, 125 Wn. 370, 216 P. 7; Grove v. Royalty Ind. Co., 223 Mass. 187, 111 N.E. 702; In re Murphy, 218 Mass. 278, 105 N.E. 635. (4) It is finally contended that the Commission erred in making the following holding: "Section 21 (c) provides that part shall be paid to `each of said dependents proportionately,' and this would seem to call for a separate award to each person. But if the relationship between the dependents is that of husband and wife and the contributions were made to them in that relation, the right to the death benefit is in the nature of an estate by the entirety." It would seem from this that the commission adopted a rather common sense view of the situation. It was not necessary to a decision by the commission that it hold that the estate was one by the entirety. No such requirement is made of the commission by the statute; nor did the commission in fact hold that it was an estate by the entirety, it simply used the expression by way of illustration, "their right to the death benefit is in the nature of an estate by the entirety," as a mere reason among others for adopting a common sense rule of making the award to both of them. It is submitted that the case was correctly ruled on this issue. Sec. 371, R.S. 1919; Missouri Workmen's Compensation Bul. 182, Opinion No. 298, dated June 7, 1928.
Action under the State Workmen's Compensation Act. The State Workmen's Compensation Commission made an award to respondents as partial dependents of James Madison Clingan, their son, who was killed while in the employment of the Carthage Ice Cold Storage Company. From this award the defendants appealed to the circuit court of Jasper county. That court affirmed the award and defendants then appealed to this court.
The evidence taken before the Commission was all offered by the claimants and shows substantially the following facts: The claimants are husband and wife living in Carthage, Missouri, and had a family of five children. The oldest was nineteen; James, the one that was killed was seventeen. The others were fifteen, ten and eight years of age. They all lived at home as one family. The father drew a salary of $175 per month and all of that and what was contributed by the deceased son was used in the support of the family and both parents testified that it was necessary to use it all for that purpose. The deceased began work for the Ice Cold Storage Company June 21, 1928, and was killed July 18, 1928. He received a weekly wage of twenty-five dollars and out of that contributed fifteen dollars per week toward the support of the family. Before his employment by the Ice Cold Storage Company, he worked for a groceryman and contributed seven dollars to ten dollars per week toward the support of the family. He would pay this money to his mother but it all went into the general fund for the support of the family and was not used by her for her individual use. In addition to these payments of money to his mother, he would, at different times, bring home groceries from the store that were used by the family. During one winter he bought all the clothes for a younger brother.
On the above facts the Commission made the allowance and by computation fixed the total at $2999.61 and directed it to be paid to respondents as tenants by the entirety in the sum of $9.998 per week for three hundred weeks less a credit of $150 previously paid for funeral expenses.
The points relied upon by appellant for a reversal are as follows:
(1) Respondents were not dependents. On that question the evidence shows that the entire income from the father's wages and all that this son contributed was used for the support of the family and was necessary for that purpose. Under that evidence the finding of the Commission that these parents were partial dependents was fully justified. [Lumbermen's Reciprocal Association v. Warner, 245 S.W. 664.]
(2) Even if these parents were partial dependents, the Commission in fixing the amount to be awarded should have deducted the reasonable cost of boarding and keeping the deceased minor employee.
Whether or not the cost of maintaining the deceased minor should be deducted is a question on which the courts seem to be divided. We are cited to a large number of cases from other states by counsel on both sides in this case and we do not find it possible to reconcile them. The question does not appear to have been passed upon in this State, or if so, it has not been brought to our attention. We shall not undertake to review the cases cited. Suffice it to say that our Workmen's Compensation Act makes no provision for such a reduction. It merely provides a basis of computation by which to determine the amount to be paid and since no provision is made for any reduction on account of being relieved of the further support of the deceased minor, it is apparent to us that none was intended. In the case of In re Peters, 65 Ind. App. 174, 116 N.E. 848, the appellate court of Indiana in discussing this question used the following language: ". . . But in view of the fact that the act in question does not purport to provide a method of determining the actual loss sustained by such father and require full compensation for such loss but only assumes to fix an arbitrary amount that shall be paid such father as compensation based on such son's annual earnings and contributions therefrom to such dependent father, it is manifest there is no basis for such contention. There is no provision in the act for any such deduction and no language from which such requirement can be inferred. Hence, we conclude both on reason and authority that the cost of the maintenance of a contributing minor son should not be considered in determining the amount of compensation to which a dependent father is entitled." We agree with what is there said as applied to our act in this State. There are other authorities cited by respondent that follow the same line of reasoning while many cases are cited by appellants that hold otherwise. Our act itself requires that "All the provisions of the Act shall be liberally construed with a view to the public welfare." That means that the intent and purpose of the act shall not be frustrated by interpolating, by construction, provisions which are not written therein that will affect the rights of the parties. We hold that point against appellants.
(3) Under this point it is contended that the evidence shows that all contributions made by the deceased son were paid to his mother and for that reason it was error to make any allowance to the father. The evidence does show that when deceased paid over part of his wages he handed it to his mother but it also shows that the entire amount so contributed went into the common fund to be used and was used to support the entire family and was evidently so intended by the son when the payments were made by him. The money was used where the son intended it to be used and it is immaterial through what hands it may have passed in accomplishing this purpose. This point can well be construed in connection with the next point relied on, to-wit, that it was error for the Commission to make an award to the father and mother jointly as tenants by the entirety. As already said the contributions made by the deceased son were made to assist in the support of the family as a whole and not personally to any particular member of the family. It would seem to be entirely proper for the Commission, in making the award, to require the compensation to be paid in such a way as to continue the same policy pursued by the deceased son. To do that, the award should go to those persons charged with the continued support of the family. As between members of the family the father is primarily liable for the support of the family but under our statute, section 371 Revised Statutes 1919, the mother is liable also and we see no impropriety in making the award to them jointly as was done in this case. The award might have been made primarily to the father with a provision that upon his death before the payments were all made the balance should be paid to the mother, as the primary duty to provide for the family would, in case of the death of the father, devolve upon the mother but practically the same result is reached by the award being made to them jointly and it is our conclusion that in a case of this kind where the contribution was made to help in the support of the family, it is entirely proper to make the award as it was made in this case. Further the total amount to be paid was fixed when the award was made and it is of no moment to defendants to whom the payments are to be made. Since those entitled to the award do not complain, the appellants cannot complain. [Milne v. Sanders (Tenn.), 228 S.W. 702.]
The question of whether the amount of the award is excessive or whether the commission used the correct basis in computing the amount of the award is not raised in this case and we do not pass upon that question.
The judgment will be affirmed.
Bailey and Smith, JJ., concur.