Spurgin v. Spurgin

— 213 — The opinion of the court was delivered by Smith, J.: This was an action for workmen’s compensation. The commissioner of workmen’s compensation made an award of compensation to the claimant. On appeal, this was approved by the district court. The respondent appeals. At the outset, it should be noted that the claimant is Anna Spurgin and the respondents are her husband, H. C. Spurgin, who is owner of the Spurgin Service Parts Company at Arkansas City, and the Hardware Mutual Casualty Company, which carries the compensation insurance for the Spurgin Service Parts Company. There is no dispute about many of the essential facts. It is undisputed that on January 23, 1938, Leon Spurgin was employed by the Spurgin Service Parts Company; that he was working under and subject to the provisions of the workmen’s compensation act; that his average weekly wage was ten dollars a week; that he was killed as the result of an accident arising out of and in the course of his employment and that he was eighteen years old and was living at home. The only question of fact upon which there is any dispute is as to whether or not his mother, Anna Spurgin, the claimant, was dependent upon him. The pertinent provisions of the statute are as follows: “O') ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means . . . parents . . .” (G. S. 1935, 44-508.) The above definition includes the word to be defined, so we must look to the entire act and to general principles for a definition that will apply to each particular case. “(a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, . . . (b) If a workman does not leave any such dependents, but leaves dependents in part dependent on his earnings, such percentage of the sum provided in paragraph 2 (a) of this section as the average annual contributions which the deceased made to the support of such dependents during the two years preceding the injury bears to his average annual earnings during such two years.” (G. S. 1935, 44-510, 2 [a], [b].) Applying the above statutes, the court heard evidence as to the amount of contribution the deceased made to the support of his mother, and found that he made a contribution of five dollars — 214 — weekly or $260 annually to her support; that she was partly dependent on the deceased and entitled to compensation in the sum of $780. There was no- dispute about the funeral expenses of $150, and this was paid. An award was made in the amount of $780. The respondent appealed from this award on the ground that the evidence did not show that the claimant was dependent on the deceased workman, and that if the record did show that she was partially dependent upon the workman there was not sufficient evidence as to how much he contributed to her support to enable the court to intelligently apply the rule set out in the above statute. At the outset, we are confronted with the rule laid down by this court so many times that in questions involving workmen’s compensation our right of review is limited to questions of law. (See Shay v. Hill, 133 Kan. 157, 299 Pac. 263, and Leamos v. Wilson & Co., 136 Kan. 613, 16 P. 2d 490.) On hearing of this case before the commissioner of workmen’s compensation all the parties agreed that the pay of the deceased workman was ten dollars per week. . There was no dispute about that. Neither was there any dispute about whether deceased was employed by his father. On the question of how much deceased contributed to the support of claimant she testified as follows: “Q. Had he been making any contributions to you at any time during the last couple of years before his death? A. Yes, he had. “Q. How much contribution had he made to you? A. Well, I never kept an exact account of it, but I imagine that it was at least half of his wages.” She testified further that she needed the contribution for doctor bills, household bills and whatever else might be necessary; that deceased had lived as a member of the household all his life; that she did not know what it would have cost him to have secured a room and board for himself had he not lived at home; that it would have been over a dollar a day anyway; that she got his meals, did his washing, mended his clothes, and bought him a suit at Christmas time; that she thought he contributed at least half of his wages; that she received money and support from her husband; that he usually provided groceries and paid the rent, electric light, water and utility bills for the home and paid for her clothes and doctor bills. A sister testified that her brother had made contributions to her mother of five dollars a week and her mother had used this money — 215 — for her support and maintenance; that at the time of his death there were her father and mother, two brothers and herself in the household. A brother testified that deceased made contributions to the support and maintenance of his mother, but did not know just how much the contributions were. When he was called as a witness for the respondent the father of deceased testified that he employed deceased and paid him ten dollars a week; that he paid most of the household bills except what “the kids helped her pay;” that deceased was supposed to give his mother five dollars a week if he could stand that much; that she used the money mostly for doctor bills; that he actually paid the grocery bill, house rent, lights, water, gas and cleaning; that deceased did not pay any board and room; that he paid all the bills of deceased and he could use all the ten dollars a week for whatever he wanted; that his wife got to depend upon the contribution. He also testified, in part, as follows: “Mrs. Spurgin got to depend upon the contribution and “Q. And it did help in the support? A. Yes. I wouldn’t have given him ten dollars a week if he hadn’t been giving her some of it.” There was testimony from all the witnesses that on account of sickness claimant required a great deal of medical attention and incurred an unusually large expense therefor. Upon the above testimony the commissioner found that deceased made a payment of five dollars a week to his mother for her support. We can only disturb such a finding if there was not substantial evidence in the record to support it. (See Shay v. Hill and Leamos v. Wilson & Co., supra.) A statement of the evidence on this point is a refutation of the argument made by respondent that this finding is not sustained by substantial evidence. The burden of the argument of respondent on this point is not so much that deceased did not pay his mother five dollars a week as that the cost of the room and board furnished deceased by his parents amounted to more than five dollars a week, and before the commissioner could make a finding that the claimant was partially dependent on deceased the amount of a reasonable charge for board and room should be deducted from the amount paid claimant by deceased. In our consideration of this question it is not seriously contended but what the reasonable cost of the board and room furnished deceased was at least five dollars a week. — 216 — It is the duty of the commissioner and the trial court to find the average yearly earnings of the deceased, and how much he contributed to the support of the claimant, and to award compensation in the proportion that the amount contributed bears to the earnings of the deceased. Before this formula may be applied, however, there must first be a finding that the claimant was actually dependent, in part at least, upon the earnings of the deceased. Slater v. Milling Co., 106 Kan. 772, 189 Pac. 908, was a case where the parents of a minor son were claiming compensation for his death. The findings of the trial court were to the effect that the wages of the deceased were $17.45 a week and that he turned all this over to his father and this, together with his father’s wages, was used for the support of his family. The court also found that the deceased lived at home and the fair value of his board and maintenance amounted to $5 a week. It will be noted that this deceased contributed $17.45 a week and that the cost of his board and room was $5. This left $12.45 a week which deceased contributed to his family after the cost of the board and room was deducted. The case.turned on whether the $5 a week should be deducted from the amount of the contributions when determining the amount of compensation to be awarded. The question of whether the claimant was partially dependent on deceased as a matter of fact does not appear to have been raised. This court treated the matter as though there was no doubt as to the partial dependency. The fact is, as has been noted, that after the cost of the board and room was deducted from the amount contributed each week by deceased still there was a balance of $12.45 to be used by the father and mother. This opinion has been treated somewhat at length here because claimant cites and relies on it as authority for the rule that in determining whether a claimant is dependent on a minor son the cost of the board and room should not be deducted from the amount of the contributions. It is not authority for such a rule. It is only authority for a rule that in such a case the cost of the board and room furnished should not be deducted when applying the formula provided in the statute. The question of whether the claimant was dependent on deceased in any degree whatever must first be established before any formula may be applied. This court followed Slater v. Oil Co., supra, in principle in Golden v. Wilson & Co., 129 Kan. 100, 281 Pac. 860. That was a case — 217 — where a wife claimed compensation on account of the death of her husband. There, however, the question with which we are concerned here was not treated. There was no question but what the wife was dependent on her deceased husband in some degree. She had been contributing all her earnings of $10 a week and he had been contributing all his earnings of $20 a week. This made a total of $30 a week which the two had to live on. This court held that the degree of dependency of the wife on her husband was sixty-six and two-thirds percent because he contributed two-thirds of the total family fund. Slater v. Milling Co., 106 Kan. 772, 189 Pac. 908, was cited in the opinion because the trial court had evidently held that the amount of’ the husband’s contribution, which had to be taken to support him, should have been deducted before calculating the degree of dependency. This court held that such need not be done. There was no question raised, however, as to whether the wife was actually partially dependent and it is clear that there was some contribution to the support of the wife even had the deductions been made. In McGarvie v. Coal Co., 103 Kan. 586, 175 Pac. 375, the parents of a deceased coal miner were claiming compensation for his death on the ground that they were partially dependent upon him. The trial court found they were dependent to a degree of seventeen-twenty-seconds of his earnings. It appears that the deceased had been living at home. The amount he contributed was well established, but there was no evidence as to what this amounted to after the cost of his board and room was deducted. This court noted this fact, and said: “The proof does not show any contribution to his parent’s support. The father and mother both frankly admitted they did not know whether the mother’s receipts of money from the son ever exceeded a fair estimate for his board and lodging or not. In other words, the plaintiffs wholly failed to prove their partial dependency upon their son for support.” (p. 588.) It should be noted that this court was speaking of proof of dependency there, the very question with which we are concerned. It can hardly be said that the opinion in Slater v. Milling Co., supra, overruled this opinion, since the precise question dealt with in each case was different. In Young v. Shellabarger Mill and Elevator Co., 123 Kan. 628, 256 Pac. 992, the parents and sister of a deceased workman were claiming compensation for his death on the ground of partial de — 218 — pendency. There was evidence as to contributions he had made in cash and as to work he had done on a farm where the family lived. Among other things the arbitrator found that the son had been paying $9 a week board, of which $4 was profit. The arbitrator had also allowed compensation on the basis of work the deceased had done around the home place. This court disallowed the latter item. On the question, in which we are interested, this court said: “We are of opinion that while the mother was partially dependent upon deceased, the $4 per week profit to her from the deceased’s room and board furnished the only basis from which compensation could be allowed to her.” (p. 630.) It might seem at first glance that these cases are in conflict, but a careful examination of them has convinced us that they are distinguishable. Claimant argues that there is a distinction between a case where the deceased workman was a minor and lived at home and where the deceased workman was an adult and lived at home. She argues that since there is the duty on parents to support a minor whether he makes any contribution or not, the reasonable cost of the board and room furnished the minor should not be deducted from the amount contributed when deciding whether the claimant was dependent. We are not impressed with this argument. It is true that parents are obligated to provide for their minor children. They are entitled, on the other hand, to their services. In this case a son eighteen years old worked for his father. He received $10 a week upon the condition that he would turn over half of it to his mother to apply on family expenses. What the arrangement really amounted to was that the father, whose duty it was to support the minor and who was entitled to the minor’s services, permitted him to keep $5 a week for his own use. As far as the son is concerned it would have amounted to the same thing if he had paid the son $20 a week upon condition that he turn over $15 to his mother. Partial dependency was found by the trial court solely upon the theory that the cost of providing the minor son with the necessities of life should'be disregarded in considering whether such a dependency existed. Such a view ignores realities and gives an artificial meaning to the word “dependency.” In Insurance Co. v. Industrial Acc. Com., 186 Cal. 517, 199 Pac. 796, a mother was claiming compensation for the death of her minor son who had been living at home. The commission had — 219 — found the mother to be partially dependent on deceased and had made an award. The statute provided that when an injury caused the death of a workman and he left one or more persons partially dependent on him these dependents should be allowed “a death benefit which shall amount to three times the annual amount devoted by the deceased to the support of the person or persons so partially dependent.” The commission did not make any deduction for the expense of the clothing, board and lodging of the deceased. The court nullified this award, and, in speaking of this question, said: “Its theory was that the language of the act authorizes an allowance in such cases not only for the amount devoted to the support of the person who is partially dependent upon the minor child, but also for the amount which such minor child contributes to the dependent person to be applied to his own support. The argument in support of this theory appears to be that the mother is primarily chargeable with the support of her minor children and that a contribution which one of those minor children makes to the support of himself and the mother is, in the contemplation of the law, money devoted to the support of the mother, as the statute expresses it. We can see no reason for such a construction of the statute. The language is plain and it limits the measure of the amount of the award ‘to the annual amount devoted by the deceased to the support of the person or persons so partially dependent.’ Money which goes to the support of the deceased himself is, of course, not devoted to the support of any other person. The award is not made to the mother because of the fact that she is primarily responsible for the support of the minor children.” (p. 518.) To the same effect is the holding of the court in Power Co. v. Industrial Ace. Com., 191 Cal. 724, 218 Pac. 1018. In that case the deceased workman had been contributing all his wages to the support of his family. The Industrial Commission found that the entire family other than the grandfather and one sister were partially dependent on him. On our question the court said: “It is the rule in this state, contrary to that which prevails in some other jurisdictions, that, in arriving at the annual amount devoted to the support of dependents, the sum of the general family expenses paid by the decedent must be diminished by deducting the fair proportion thereof that went to the support of the decedent, and of others in the family who were not dependent upon him. Everything must be excluded therefrom except the amount of his contributions that was devoted to the support of the dependents. (Federal Mutual L. Ins. Co. v. Industrial Acc. Com., supra.)” (p. 738.) These authorities set out a logical'and sound test for determining when a claimant is actually dependent. We hold that since the record is clear that deceased contributed — 220 — $5 a week to the support of his mother and a reasonable charge for his board and room would be $5 a week, there was no evidence that claimant was dependent on him in any amount whatever. The judgment of the trial court is reversed with directions to render judgment for the defendant. Wedell, J., concurs in the result.