Day v. Sioux Falls Fruit Co., File No. 4678

File No. 4678 | S.D. | May 24, 1920

McCOY, P. J.

This action arises under the Workmen’s Compensation Law (chapter 277, Laws of 1917), and was instituted 'by Frank L. Day and Pearl Day, father and mother of one Van P. Day’, a son, who was killed while in the employunent of the Sioux Falls Fruit Company, at the city of Sioux Falls, on the 12th day of March,- 1919. Claim, was filed with the industrial commissioner by said parents claiming that they were dependent for support upon said deceased employe at the time of his death. The said employer and its insurer, the codefendant, resisted said claim. Under the’provisions of said law a board of arbitrators wias appointed, testimony taken and heard, and findings and award in the sum; of $1,650 made and- allowed by said board in favor of said claimants. On demand of defendants a review thereof was had before the industrial commissioner, who received and heard further testimony, and approved and affirmed said findings and award. Appeal 'by said defendants was then taken to the circuit court, wherein judgment was rendered, affirming the order of the industrial commissioner. Motion for new trial was made and overruled, and an appeal taken to this court.

The first 13 assignments of error refer to ruling's in relation to the admissibility of evidence. According to strict and formal rules of evidence, applicable on trials before law courts, some of said assignments may be well grounded, as some of the questions were leading in form, wihile others called more or less for the expression of a conclusion rather than a direct statement of a probative fact. We are of the view that at least a part of the policy and intention of the Legislature in enacting the Workmen’s Compensation Law was to evade the delays and much of the technical formal procedure incident to trials, before courts,, and to establish a more simple, speedy, less formal and summary method of procedure, unhampered by formal legal rule, for the adjustment of su-ch questions between the employer and employe. Hollenbach Co. v. Hollenbach, 181 Ky. 262" court="Ky. Ct. App." date_filed="1918-06-21" href="https://app.midpage.ai/document/phil-hollenbach-co-v-hollenbach-7145008?utm_source=webapp" opinion_id="7145008">181 Ky. 262, 204 S. W. 152, 16 N. C. C. A. 879; Industrial Commissioner v. Johnson (Colo.) 172 P. 422" court="Colo." date_filed="1918-03-04" href="https://app.midpage.ai/document/industrial-commission-v-johnson-6566811?utm_source=webapp" opinion_id="6566811">172 Pac. 422, 16 N. C. C. A. 350; Parson v. Murphy, 101 Neb. 542" court="Neb." date_filed="1917-07-10" href="https://app.midpage.ai/document/parson-v-murphy-6662776?utm_source=webapp" opinion_id="6662776">101 Neb. 542, 163 N. W. 847, L. R. A. 1918F, 479, 16 N. C. C. A. 174.

[1] We are of the view that the Workmen’s Compensation Law should receive most liberal construction, and that the findings and awards of arbitrators and the industrial comim-issioner should not be reversed for failure to observe the formal rules of evidence applicable on 'trials before law courts, unless it clearly appears that appellant has been prejudiced thereby to such an extent as to deprive him of some substantial right. Considering the said assignments of error in this light, we are of the view that appellants were in no manner prejudiced by reason of any of said rulings. It does not appear that any evidence was rejected that should have been received and considered, which mig'ht have been ground for substantial -modification or have changed the result.

[2] The next error assigned is that the court erred in entering judgment affirming the decision of the- industrial commissioner. This assignment, standing alone, is unavailing for any purpose, as it in no manner points out wherein. or of what such alleged error consists.

¡Appellant alleges that the evidence is insufficient to justify the judgment, in that it fails to show that respondents were dependent upon the deceased son for support at the time of the accident, but does show that they were not and never had been dependent on him, and that no contributions had been made by him to respondents for more than 17 months, and that they .were entirely capable of and 'financially -able to support themselves without assistance from deceased. It appears from the record that deceased was 22 years of age at the time of his death; that he had had 2, years in 'high school; that for some 5 or 6 years thereafter he had been employed in grocery stores and boarded at home, and paid to his mother from $6 to $8 per week, or such sums as he could' spare after purchasing' his clothes, and that such sums were used in paying family expenses and payments on the home; that in September, 1917, he enlisted and went to France, and returned on the 15th day of February, 1919; that during the time he w,as in the service he made no contributions to the family, but the father had sent him $25; that he claimed he had purchased .a Liberty Bond in the name of his mother for $150, but that the same had not been received; after his- discharge from the army he lived at home with his parents, and was receiving $85 per month compensation at the time of his death; that .during those 25 'days he paid a $30 grocery bill of the father arid a payment of $17.50 on the home. It also appears that .at. the date of the accident the father was 44 years of age, in good health,, and regularly employed at $110 per month; that he owned no property except an equity in a homte, held under a-contract of purchase and partly paid for, and one other' lot partly paid for, and an automobile, partly paid, for, with no other debts except current expenses; that the fámily consisted of the father, mother, 17 year old unmarried daughter, and a married daughter and baby; that the husband of the married daughter was still in the service, and that the married daughter and baby were living with respondents temporarily; that the married daughter was receiving an allotment of $40 per month, about $10 per month of which she voluntarily contributed towards maintaining the home.

[3-6] The deceased was unmarried and left no child or children. The respondents must recover, if at all, under the provisions of section 9458, Rev. Code 1919, which in substance provides that in case the deceased employe leaves no widow, child, or children, but leave parents who were dependent upon him for support at the time of his death, a sum equal to four times the average annual earnings of the deceased employee, not less than $1,650 nor more than $3,000 shall be paid to such parents as compensation for the death of such employe. This statute makes no distinction between degrees of dependency. The question then is, were these parents dependent for support, in whole or in some substantial part, upon said 'deceased son at the time of his death? We are of the opinion that the evidence shows actual dependency. Where persons of limited means, such as respondents, and otherwise entitled to compensation, had actually received contributions for support from the wages of the deceased employe, such facts would constitute evidence strongly tending to establish dependency. In re Derinza, 229 Mass. 435" court="Mass." date_filed="1918-02-28" href="https://app.midpage.ai/document/derinzas-case-6434324?utm_source=webapp" opinion_id="6434324">229 Mass. 435, 118 N. E. 942, 16 N. C. C. A. 210; In re McMahon, 229 Mass. 48" court="Mass." date_filed="1918-01-02" href="https://app.midpage.ai/document/mcmahons-case-6434233?utm_source=webapp" opinion_id="6434233">229 Mass. 48, 118 N. E.189. In the last cited case the situation was strikingly similar to that in the case at bar in relation to the question of dependency of parents. The sufficiencj'' of the evidence before the industrial commissioner, on the question of dependency, is not subject to review, by an appellate court, where there is any reasonable or substantial evidence tending to establish the finding of the commissioner. Paul v. Com., 288 Ill. 532" court="Ill." date_filed="1919-06-18" href="https://app.midpage.ai/document/paul-v-industrial-commission-6979100?utm_source=webapp" opinion_id="6979100">288 Ill. 532, 123 N. E. 541, 18 N. C. C. A. 292, and note; Crosaro v. Com. (Cal App.) 177 P. 489" court="Cal. Ct. App." date_filed="1918-11-21" href="https://app.midpage.ai/document/pretty-v-warden-3284003?utm_source=webapp" opinion_id="3284003">177 Pac. 489; Bloomington-B. Stone Co. v. Phillips (Ind. App.) 116 N.E. 850" court="Ind. Ct. App." date_filed="1917-06-29" href="https://app.midpage.ai/document/bloomington-bedford-stone-co-v-phillips-7067439?utm_source=webapp" opinion_id="7067439">116 N. E. 850.

Finding no prejudicial error in the record, the judgment and order appealed from are affirmed.