MARY ELIZABETH KENNEDY, ESTELLA MARIE KENNEDY AND ROBERT JAMES KENNEDY, RESPONDENTS, v. EUGENE KELLER AND THE FIDELITY & CASUALTY COMPANY OF NEW YORK, APPELLANTS.
St. Louis Court of Appeals
April 7, 1931
37 S. W. (2d) 452
Our conclusion is, therefore, that defendants’ requested peremptory instruction in the nature of a demurrer to all the evidence was properly refused.
Other assignments of error which have been preserved in the course of the brief go to the propriety of the allowance of secondary evidence of the existence of the policy of liability or indemnity insurance. In view of our cоnclusion that there was no necessity for plaintiff to prove in the first instance that assets of the corporation passed into the hands of its trustees, the whole question of the proof of the existence and nature of the policy of insurance becomes immaterial to the merits of the action at this stage of the proceedings where only the procurement, and not the satisfaction, of thе judgment is sought.
For the reasons stated, the judgment rendered by the circuit court should be affirmed; and the Commissioner so recommends.
PER CURIAM:-The foregoing opinion of BENNICK, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly, affirmed. Haid, P. J., and Becker and Nipper, JJ., concur.
SUTTON, C.-This is an action under the
Plaintiffs are the minor children of Robert J. Kennedy, an employee of defendant, Eugene Keller. Defendant, Fidelity & Casualty Company of New York is the insurer of Keller‘s liability. Keller operated a stone quarry near Louisiana, in Pike county. Robert J. Kennedy was employed by Keller as a truck driver. On April 19, 1928, while so employed, Kennedy mеt with an accident which caused his death. There is no dispute that the accident arose out of and in the course of his employment. Plaintiffs at the time of the death of their father were living with their mother and stepfather at Muscatine, Iowa. Their mother was divorced from their father on November 24, 1924, and their custody was awarded to their mother, who was awarded $25 per month for their support. At the time of their father‘s dеath they were respectively, nine, seven and five years of age. They had not lived with their father since the divorce was granted, in 1924. He paid the money awarded for their support for eleven months, but madе no further payments. The mother did not know his whereabouts from the time he made his last payment until his death, and never heard from him. In September, 1926, she remarried, and afterwards the plaintiffs lived with her and her husband, and were suрported by him. The Probate Court of Pike county, on February 13, 1929, appointed L. O. Calvert as their curator. On February 14, 1929, he instituted this action on their behalf before the Workmen‘s Compensation Commission. The commission disallowed their claim, and they appealed to the circuit court, which court, on October 7, 1930, reversed and set aside
The judgment of the cirсuit court was arrived at on the theory that the evidence showed the plaintiffs were totally dependent upon their father for their support. The defendants insist here, as ground for reversal of the judgment, that sinсe the plaintiffs were not living with their father at the time of his death, and were therefore not conclusively presumed to be totally dependent upon him for their support, and since the evidence shows thаt he contributed nothing to their support for several years before his death, and the plaintiffs were therefore not in fact dependent upon him for support, they failed to make out a case of either total or partial dependency upon him for their support.
The
“The word ‘dependent’ as used in this chapter shall be construed to mean а relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his wages at the time of the injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee in the following order and any death benefit shall be payable in the following order, to-wit:
“1. A wife uрon a husband legally liable for her support, and a husband mentally or physically incapacitated from wage earning upon a wife.
“2. A natural, posthumous, or adopted child or children, whether legitimate or illegitimate, under the age of eighteen years, or over that age if physically or mentally incapacitated from wage earning, upon the parent with whom he is living at the time of the death of such рarent, there being no surviving dependent parent or stepparent. . . . In all other cases questions of total or partial dependency shall be determined in accordance with the facts at thе time of the injury.”
The word “dependent” ordinarily means in need of aid or support; not self-sustaining. A dependent person is one who has not the means of his own to support himself. A total dependent is one who hаs no means whatever to support himself. A partial dependent is one who has some means, but not sufficient for his support. The plaintiffs here were obviously totally dependent. They had no means of their own, and were utterly without earning capacity. That such dependency was actual-that is, real-there could hardly be the suggestion of a doubt. Upon whom then were they dependent? Being infants of tender years, they would ordinarily be presumed to be dependent upon their father, upon whom the law imposes the
If the divorce decree had, as in the McGarry case, imposed upon the plaintiff‘s mother the duty of supporting them, and she had in fact supported them, a very different case from that we have before us would be presented.
It will be observed that the statute makes the wife conclusively dependent upon a husband legally liable for her support, and puts it on the sole ground of such legal liability. It is inconceivable that the statute makes the wife conclusively dependent upon her husband because he is legally liable for her support, though she lives separate from him, and though she may in fact havе ample means, or ample earning capacity, to support herself, and yet intends that his infant children of tender years, who are shown to be wholly without the means, or the earning capacity, to support themselves, and are
Of course, the dependency of these plaintiffs upon their father is not conclusivеly presumed since they were not living with him at the time of the accident, but the undisputed evidence shows actual dependency upon him, and on such evidence the court found such actual dependency, and entered judgment accordingly. The authority of the court to enter such judgment on the evidence is not in question, since the record shows that the parties in open court consented that it might do so, and waived and dispensed with a remanding of the cause to the commission.
This case is distinguishable from Glaze v. Hart, decided by the Kansas City Court of Appeals, in that in that case, though the child claiming compensation had been awarded by the court in the divorce decree to the custody of its mother, there was no award made against its father for its support, but on the contrary, it was agreed between the father and the mother that she should have the сustody and entire support of the child, the father conveying to the mother some property in Kansas City.
There is no merit in the contention that the plaintiffs’ claim is barred for not having been filed within six months after the injury. The claim was filed directly after their curator was appointed, and it was in time, if filed within six months after such appointment. [
The commissioner recommends that the judgment of the circuit court be affirmed.
PER CURIAM:-The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Haid, P. J., and Becker and Nipper, JJ., concur.