Schnelz v. Brown Paper Mill Co., Inc.

STATEMENT OF THE CASE REYNOLDS, J. Charles Ernest Schnelz sustained an injury in the cause of his employment by the defendant which caused his death. He left neither widow nor children. His father and minor brother brought this suit for compensation under the Employers’ Liability Act, claiming to have been dependent upon the deceased for support to some extent. Defendant denied that plaintiffs were dependent on the deceased for support to any extent. On this issue the case was tried and there was judgment rejecting plaintiffs’■ demands and they have appealed. OPINION The only question in dispute is whether plaintiffs were actually dependent on the deceased for support to any extent. This question is one of fact that must be decided from the evidence introduced in the case. As to the claim of the plaintiff, Leo Schnelz, minor brother of the deceased, the evidence in no way attempts to establish that he was dependent on the deceased for support to any extent or that the deceased had contributed to his support to any extent. As to this plaintiff, therefore, it is clear that he has no right to compensation as having been dependent upon the deceased for support. As to the plaintiff, Ernest Schnelz, the father of the deceased, the evidence shows that he was a retail grocer on a small scale at Dermott, Chico county, Arkansas, at the time of his son’s death, and that he did a thirty-day credit business of more than $15,000.00 gross per annum, and from which he derived a net profit of 8 per cent. Mr. A. N. Heininger, confidential adviser and friend of the plaintiff, Ernest Schnelz, testified, page 36 of the evidence: “Q. You testified a while ago that a merchant should make about twenty per [423] cent gross profit, average. Do you know what Mr. Schnelz’s net profits ' were, average! “A. I couldn’t tell you unless you let me refer to the records. His net profits should be around eight per cent after allowing for bad accounts, bad merchandise, expenses, current expenses, of course. “Q. That would cut his net profits down to about eight per cent? “A. That would be about right.” Plaintiff, Ernest Schnelz, owed, in addition to the business in question, the store house in which it was conducted, his own home, two dwelling houses that he rented out, and $2000.00 in the capital stock of a wholesale grocery company, and also a horse and a wagon. He lived very frugally, employing no help except a servant whom he paid $4.00 a week, and a delivery boy, and had only himself and a minor son to support. This minor son worked for his father and attended school, where he had reached the tenth grade. Under all the evidence we are convinced that plaintiffs were independent of and in no way dependent upon the deceased for support to any extent and that the deceased did not contribute to their support-to any extent. In their able brief counsel for plaintiffs insist that the plaintiff, Ernest Schnelz, had been losing money since the death of his son, but plaintiff himself testified, page 5 of the evidence: “Q. Did you owe any debts at the time your son left home? “A. If I was in debt? “Q. At the time he left home? “A. Some, yes. ‘Q. How much'? “A. Three hundred or four hundred, I don’t know exactly. “Q.. How much did you owe at the time he was killed? ‘‘A. Well, I guess we were holding about even. Same indebtedness. He promised me he would help me to pay.” And counsel also contend that the value of all property owned by the plaintiff, Ernest Schnelz, at. the time of his son’s death was less than $5000.00. Defendant’s counsel, in their brief, contend that the evidence shows that the value of his property was $17,300.00. We have not found it necessary to verify either of these contentions, for under the evidence of plaintiffs’ own witness, quoted above, we are convinced that plaintiffs were not dependent on the deceased for support to any extent. Plaintiffs’ counsel cite in support of their contention the eases of: Gregory vs. Standard Oil Co., 151 La. 228, 91 South. 717. Hamilton vs. The Texas Co., 151 La. 692, 92 South. 301. Rome vs. Mexican Petroleum Co., 3 La. App. 523. Cauthorn vs. Cypress Tank Co., 1 La. App. 100. Heinzelman vs. Board of Commissioners, 149 La. 219, 88 So. 798. Nelson vs. Henderson Iron Works, 1 La. App. 332. In each of these cases the deceased was a minor son and the parents of these sons were, under the law, entitled to their wages, and the evidence in each of the cases showed that the parents had been receiving, from time to time, at least a portion of their deceased son’s wages. In the present case the deceased was a major at the time of his death and his wages belonged to himself, and the evidence does not show that from the time he left home in March, 1924, to his death [424] on August 29, 1924, he had in any way-contributed to the support of the plaintiffs or had paid either of them any sum of money whatever. Under the authority of Hansen vs. Ohio Oil Co., 2 La. App. 690, we are convinced that plaintiffs were not dependent on the deceased for support to any extent at the time of his death and that the judgment of the district judge, who heard 'and saw the witnesses testify, is correct. It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.