Triola v. Western Union Tel. Co. , 224 Mo. App. 258 ( 1930 )

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1. — Workmen's Compensation Act — Compensation Claims — Parentsof Deceased Employee Claimants — Partial Dependents — Total DeathBenefit. Under section 21 (b), (c), of the Workmen's Compensation Act (Laws of 1927, p. 503) the part of the death benefit which partial dependents of a deceased employee receive is determined by the proportion of the employee's wages which he contributes to such partial dependents, and not such amount as the total contributions bear to the total family income, so that partial dependents, to whom deceased employee contributed all of his wages are entitled to the total death benefit.

2. — Same — Same — Same — Failure of Deceased to Obey Rule ofEmployer — Riding Bicycle on Sidewalk — Deductions. An employerheld not entitled to deductions from employee's death benefit under section 3 of the Workmen's Compensation Act (Laws of 1927, p. 493) on the ground that the death was caused as a result of deceased violating a city ordinance making it unlawful to ride a bicycle upon a city sidewalk and also a like rule of the employer; the rules referred to in said section applying where the employees are engaged in work on the premises of the employer and not to an accident which might occur on the streets and not immediately connected with the operation of the employer's business.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Moses N. Sale, Judge.

AFFIRMED.

Jones, Hocker, Sullivan Angert and Warren F. Drescher,Jr., for appellant.

(1) The findings of the commission must be sufficient to support the award, and the award must be supported by sufficient competent evidence. Smith v. Levis-Zukoski Mercantile Company et al., 14 S.W.2d 470; Lowe Co. v. Industrial Commission of Utah, 190 P. 934; Smith v. National Sash Door Company,96 Kan. 816, 153 P. 533; Herrick Case, 217 Mass. 111, 104 N.E. 432; In re Kelly's Case, 222 Mass. 538, 111 N.E. 395; Wolz et al. v. Holbrook, Cabot Rollins Corporation, 170 A.D. 6,155 N.Y.S. 703. (2) Where employee, a minor, is killed in an accident arising out of and in the course of his employment, and prior to his death he has regularly contributed all of his wages to a general family fund handled by his parents, who also have other sources of income, the parents, if dependency at all is proven, are only partially dependent upon the minor to an extent proportionate to the percentage of his contribution as same relates to the general family income. Missouri Workmen's Compensation Act, secs. 21 (b) and 21 (c), (Laws of Missouri 1927, page 503); Inter-Lake Pulp Paper Co. v. Imm et al., 202 N.W. 175; London Guarantee Accident Co. Ltd. v. Industrial Accident Commission of California et al., 260 Pac. l.c. 355; Michael et al. v. Jacob Dold Packing Company, 244 P. 1050; Aetna Life Insurance Co. v. Smith, 29 Ga. App. 628, 116 S.E. 322; Hamilton et al. v. Texas Co., 151 La. 692, 92 So. 301; State ex rel. Ernest Flackenstein Brewing Co. v. District Court of Wright County, 134 Minn. 324, 159 N.W. 755; John M. Smyth Co. v. Industrial Commission et al., 306 Ill. 171, 137 N.E. 519; Little v. Crow-Edwards Lumber Co., 121 So. 219; Geo. A. Lowe Co. et al. v. Industrial Commission of Utah, 190 P. 934. (3) Where the injury is caused by the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, which rule has been kept posted in a conspicuous place on the employer's premises, of which the employee had actual knowledge of said rule so adopted by the employer, and which rule the employer had prior to the injury made a diligent effort to cause his employees to obey or follow, then a fifteen per cent reduction should be made in any award given by way of compensation or death benefit. Missouri Workmen's Compensation Act, section 3 (Laws of Missouri 1927, p. 500); Smith v. Corson,87 N.J.L. 118, 93 A. 112; Reimers v. Proctor Publishing Co.,85 N.J.L. 441, 89 A. 937; Hopley v. Pool, 8 B.W.C.C. 512; Griggs v. Steamship Gamecock, 6 B.W.C.C. 15. Gerritzen Gerritzen for respondents.

(1) The findings of the commission are sufficient to support the award and the award is supported by sufficient competent evidence. Section 44 of the Act (Laws 1927, page 512); Kiser on Workmen's Compensation Acts (40 Cyc. par. 127); 2 Schneider on Workmen's Compensation, par. 561; Elizabeth Patrick v. J.B. Ham Company et al., 111 A. 912; Steel Sales Corporation, Plaintiff in Error v. Industrial Commission of Illinois et al.,203 Ill. 435, 127 N.E. 698; Western Indemnity Company v. State Industrial Commission et al. (Okla.), 219 P. 147. It is conceded by appellant that Angelo Triola came to his death by accident arising out of and in the course of his employment and therefore, there can be no sound argument advanced against the propriety of the parents' right to be compensated, absent proof of intentional, self-inflicted injury. (2) Where an employee, an unmarried, unemancipated minor, living with and under the custody and control of his parents, is killed in an accident arising out of and in the course of his employment, and prior to his death, he regularly contributed all of his wages to his parents, who had another source of income from another son and who, in turn furnished the employee with maintenance and support, and the parents actually needed all of the employee's wages for the support of themselves and their family, are conclusively presumed to be total dependents for support upon a deceased employee. Section 21 (d) of the Workmen's Compensation Act (Laws of Missouri, 1927, p. 503); Wisconsin Drainage Co. v. Ganzer, 152 N.W. 460-461; Cowen, taken from the Industrial Commission of Ohio, case No. 94,164, reported August 15, 1915; Murphy v. Bigelow, 105 N.E. 635; Peoples' Hardware Company v. Croke, 118 N.E. 314; Rogers v. Dow Chemical Company, National Compensation Journal of June, 1917, Vol. 6, par. 275, in the Negligence Compensation Cases Annotated; Mahoney v. Gamble, Desmund Company,90 Conn. 255, 96 A. 1025, Vol. 13, page 315, Negligence Compensation Cases Annotated; Hodgson v. Owners of West Stanley Colliery, Butter Worth Compensation Cases, Vol. 3, page 260, reversing the decision of Court of Appeals in 2 B.W.C.C. 275; Garcia v. Industrial Accident Commission, 171 Cal. 57,151 P. 741; Blanton v. Wheeler H. Co., 91 Conn. 226, 99 A. 494; Rudwick v. White Bros., 7 Boyce 576, 109 A. 881; Rockford Cabinet Co. v. Industrial Commission, 295 Ill. 332; Carroll,65 Ind. App. 146; McDonald v. Employers' Liability Assurance Corp., 112 A. 719; Coakley's Case, 216 Mass. 71, 102 N.E. 930; Miller v. Riverside Storage Cartage Co., 189 Mich. 360; Miller v. Public Service R. Co. (New Jersey), 84 N.J.L. 174; Watz v. Holbrook, C. R. Corp., 155 N.Y.S. 703; Jackson v. Industrial Commission, 164 Wis. 94; England, Simms v. Lilleshall Colliery Co., W.C. Ins. Rep. 218; Driscoll v. Jewell Betting Co., 96 Conn. 295; McCormick v. Central Coal Coke Co., 117 Kan. 686. (3) Missouri Workmen's Compensation Act, section 3 (Laws of Missouri, 1927), page 493 (not page 500 as cited in appellant's brief), provides that "where the injury is caused by the willful failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employee, which rule has been posted in conspicuous places on the employer's premises, the compensation and death benefit provided for herein shall be reduced fifteen per cent," etc. And ending with this significant provision: "And provided, further, that the employer, at and prior to the injury, made a diligent effort to cause his employees to use safety device or devices and to obey or follow said rule so adopted for the safety of said employee." The language of section 3 of the Act has no application whatever to the undisputed facts in the controversy and in our opinion is untenable. Beaudry v. Watkins,191 Mich. 445; Allan v. Glenborg Union Fire Clay Co., S.C. (Scot.) 967; Praties v. Broxburn Oil Co., S.C. (Scot.) 581; Beasman v. Butler,105 A. 409; Nickerson's Case, 218 Mass. 158, 105 N.E. 604; Leishmann v. Dixon, S.C. 498, 3 B.W.C. Co. 460.

NIPPER, J.

This action was instituted before the Workmen's Compensation Commission, by claimants, who are the parents of Angelo Triola, seventeen years old, deceased, against the Western Union Telegraph Company, employer of Angelo Triola.

The claim alleged that Angelo Triola died as a result of injuries received when a bicycle on which he was riding was struck by a truck, the property of the Ragland Transfer Company, Greenville, Illinois. The total amount of compensation claimed was $3,048, being the maximum penalty allowable.

In the answer filed, all the statements in the claim for compensation were admitted, except that it is alleged that deceased was injured while violating a city ordinance of the City of St. Louis, and when failing to obey a reasonable rule adopted by the employer, of which the employee had notice, said ordinance making it unlawful to ride a bicycle upon the city sidewalk, and said rule of the employer also requiring its employees not to ride bicycles upon city sidewalks.

Upon a hearing before the commission the claimants were allowed the full amount asked for, subject to a credit of $150 for burial expenses. An appeal was taken to the circuit court, where the award of the Commission was affirmed, and the appellant has brought the case here.

The facts of this case are undisputed. Angelo Triola, the deceased, was seventeen years old, and died as a result of injuries received November 5, 1927, in an accident arising out of and in the course of his employment with his employers, Western Union Telegraph Company, while riding a bicycle on a sidewalk in the City of St. Louis, when he was struck by the truck heretofore referred to. The employer paid the expenses of the burial of the boy in the amount of $150. No compensation was paid the boy's parents because there was a question as to the extent of their dependency upon deceased employee. The facts show that at the time of the death of Angelo Triola, his father was earning an average weekly wage of $22.80; the deceased's brother was earning an average weekly wage of $21, and the deceased was earning an average weekly wage, at the time of the accident, of $15.24. The family consisted of ten members. The three working members being the father and the two sons mentioned. The total family income made up by the wages of the father and two boys amounted to $59.04 per week.

The case was tried in the court below, and in this court it was argued and briefed by counsel for claimants, upon the theory that the claimants were total dependents of deceased, and, therefore, entitled to the total death benefit. The learned trial judge affirmed the finding of the Commission, and in his written opinion stated that it was done on the theory that claimants were total dependents within the meaning of the Workmen's Compensation Act.

Counsel for appellants contended that claimants were only partial dependents, and, therefore, would only be entitled to recover 25.8 per cent of the total death benefit, or an amount equal to such percentage of their dependence upon the deceased employee which would amount to $786.39 instead of $3,048, which the commission allowed, and which allowance the trial judge sustained on the theory that the claimants were total dependents.

After our original opinion was handed down we granted a rehearing, and this case has been reargued and resubmitted. In our original opinion we held that the claimants were only partial dependents, and as such partial dependents, were only entitled to receive $786.39. In the original brief filed here by counsel for claimants it is not contended that if claimants were partial dependents they would be entitled to more than counsel for appellants contended partial dependents were entitled to. Counsel for claimants in their motion for rehearing admitted that we were correct in holding that the parents were only partial dependents, but insisted that we had erred in construing Section 21 (c) of the Workmen's Compensation Act, with respect to the amount that partial dependents should receive. Such counsel, in their motion for rehearing, contended that in as much as the deceased contributed all his wages, the death benefit which the partial dependents would receive would be the same amount as if they were total dependents. Later, when the case was reargued, counsel for claimants advocated still another theory to the effect that the death benefit is the same in all cases, whether there be total or partial dependents, and that Section 21 (c) merely provides the method of distributing this single total death benefit.

We have three theories advocated in this case. First, that this court was right in its original opinion as to the amount a partial dependent should receive. Second, that the part a partial dependent is to receive is determined by the proportion of his contributions, and that if he contributes three-fourths of his income to partial dependents, such partial dependents would receive three-fourths of the total death benefit, or if he contributed all his earnings the partial dependents would receive the total death benefit, or the same amount the total dependents would receive. The third theory is that the death benefit is the same in all cases, whether there be total or partial dependents, but the method of distributing to partial dependents is determined by the percentage which each partial dependent would receive as compared to the employee's total contributions.

We have given this case much thought and careful consideration, and have come to the conclusion that the second theory above referred to is the correct one, and the one which was really intended by the legislature. We deem it wise at this point in our opinion to set out that part of the Workmen's Compensation Act which we deem directly applicable to the facts of this case, and necessary to a proper determination thereof, which is paragraphs (b) and (e) of Section 21 of the Act.

(b) "The employer shall also pay to the total dependents of the employee a single total death benefit, the amount of which shall be determined in the following manner to-wit: There shall first be determined as a basis for computation 66 2/3 per cent. of the employee's average weekly earnings during the year immediately preceding the injury as provided in section 22 and such amount shall then be multiplied by three hundred and the amount so determined shall be the amount of such death benefit. The death benefit provided for shall be payable in installments in the same manner that compensation is required to be paid under this act, but in no case less than at the rate of six dollars per week nor more than twenty dollars per week. There shall, however, be deducted from such death benefit any compensation which may have been paid to the employee during his lifetime for the injury resulting in his death. If there be a total dependent or total dependents as the case may be, no death benefit shall be payable to partial dependents, or any other persons except as provided in paragraph (a) of this section.

(c) "If there be partial dependents, and no total dependents, a part of the death benefit herein provided in the case of total dependents, determined by the proportion of his contributions to all partial dependents by the employee at the time of the injury, shall be paid by the employer to each of such dependents proportionately."

We are clearly of the opinion that the claimants here are only partial dependents. That fact is now conceded by counsel for claimants, and the question with which we are now concerned is the proper construction to be placed upon paragraph (c), which determines the amount that a partial dependent shall receive. By reference to this paragraph or sub-section, it will be noted that the language used therein is anything but clear and unambiguous. Either of the three constructions above contended for could be placed upon this section, but it is our duty to ascertain, if possible, just what the Legislature really meant and intended by the enactment of this provision. A reference to the Compensation Acts of other states is of little or no benefit to us because we have been unable to find an identical provision in the act of any other state.

The average weekly earnings of the deceased were $15.24. In order to arrive at the total death benefit as provided in paragraph (b) above set out, we would multiply two-thirds of the average weekly earnings by three hundred, which would amount to $3,048. Now to determine the amount which partial dependents would receive we would have to use the above total as a basis, and under our construction of paragraph (c), if deceased had contributed two-thirds of his income to his parents these parents as such partial dependents would be entitled to receive two-thirds of the total death benefit, but where, as in this case, the partial dependents receive all of the employee's wages, then such claimants would be entitled to receive $3,048, or the same amount that total dependents would receive, because the act provides that if there be partial dependents and no total dependents, the part of the death benefit which is to be paid such partial dependents proportionately, shall be determined by the proportion of his contributions to all partial dependents. Paragraph (c) when properly construed, we think, means that the part of the death benefit which partial dependents receive is determined by the proportion of the employee's wages which he contributes to such partial dependents, and not such amount as the total contributions bear to the total family income.

The point is also made by the appellant that as the injury and death of the employee was caused by his failure to obey a reasonable rule adopted by the employer for the safety of its employees, which rule prohibited the employees from riding bicycles upon the sidewalks, the death benefit should be reduced fifteen per cent under the provisions of Section 3 of the Workmen's Compensation Act, Laws of Missouri 1927, page 493.

In his written opinion the trial judge held that such rules adopted by an employer and referred to in Section 3, were rules where the employees are engaged in work on the premises of the employer, and where the safety devices referred to in the act are used and can be used, and did not refer to an accident which might occur on the streets of the City of St. Louis, and not immediately connected with the operation of the employer's business. We are inclined to the view that under the facts of this case no deduction should be allowed.

The judgment of the circuit court is accordingly affirmed.Haid, P.J., and Becker, J., concur.

Reporter's Note:- Writ of certiorari in the foregoing case was denied by the Supreme Court, May 15, 1930.

This action was instituted before the Workmen's Compensation Commission, by claimants, who are the parents of Angelo Triola, seventeen years old, deceased, against the Western Union Telegraph Company, employer of Angelo Triola.

The claim alleged that Angelo Triola died as a result of injuries received when a bicycle on which he was riding was struck by a truck, the property of the Ragland Transfer Company, Greenville, Illinois. The total amount of compensation claimed was $3,048, being the maximum penalty allowable.

In the answer filed, all the statements in the claim for compensation were admitted, except that it is alleged that deceased was injured while violating a city ordinance of the City of St. Louis, and when failing to obey a reasonable rule adopted by the employer, of which the employee had notice, said ordinance making it unlawful to ride a bicycle upon the city sidewalk, and said rule of the employer also requiring its employees not to ride bicycles upon city sidewalks.

Upon a hearing before the commission the claimants were allowed the full amount asked for, subject to a credit of $150 for burial expenses. An appeal was taken to the circuit court, where the award of the Commission was affirmed, and the appellant has brought the case here.

The facts of this case are undisputed. Angelo Triola, the deceased, was seventeen years old, and died as a result of injuries received November 5, 1927, in an accident arising out of and in the course of his employment with his employers, Western Union Telegraph Company, while riding a bicycle on a sidewalk in the City of St. Louis, when he was struck by the truck heretofore referred to. The employer paid the expenses of the burial of the boy in the amount of $150. No compensation was paid the boy's parents because there was a question as to the extent of their dependency upon deceased employee. The facts show that at the time of the death of Angelo Triola, his father was earning an average weekly wage of $22.80; the deceased's brother was earning an average weekly wage of $21, and the deceased was earning an average weekly wage, at the time of the accident, of $15.24. The family consisted of ten members. The three working members being the father and the two sons mentioned. The total family income made up by the wages of the father and two boys amounted to $59.04 per week.

The case was tried in the court below, and in this court it was argued and briefed by counsel for claimants, upon the theory that the claimants were total dependents of deceased, and, therefore, entitled to the total death benefit. The learned trial judge affirmed the finding of the Commission, and in his written opinion stated that it was done on the theory that claimants were total dependents within the meaning of the Workmen's Compensation Act.

Counsel for appellants contended that claimants were only partial dependents, and, therefore, would only be entitled to recover 25.8 per cent of the total death benefit, or an amount equal to such percentage of their dependence upon the deceased employee which would amount to $786.39 instead of $3,048, which the commission allowed, and which allowance the trial judge sustained on the theory that the claimants were total dependents.

After our original opinion was handed down we granted a rehearing, and this case has been reargued and resubmitted. In our original opinion we held that the claimants were only partial dependents, and as such partial dependents, were only entitled to receive $786.39. In the original brief filed here by counsel for claimants it is not contended that if claimants were partial dependents they would be entitled to more than counsel for appellants contended partial dependents were entitled to. Counsel for claimants in their motion for rehearing admitted that we were correct in holding that the parents were only partial dependents, but insisted that we had erred in construing Section 21 (c) of the Workmen's Compensation Act, with respect to the amount that partial dependents should receive. Such counsel, in their motion for rehearing, contended that in as much as the deceased contributed all his wages, the death benefit which the partial dependents would receive would be the same amount as if they were total dependents. Later, when the case was reargued, counsel for claimants advocated still another theory to the effect that the death benefit is the same in all cases, whether there be total or partial dependents, and that Section 21 (c) merely provides the method of distributing this single total death benefit.

We have three theories advocated in this case. First, that this court was right in its original opinion as to the amount a partial dependent should receive. Second, that the part a partial dependent is to receive is determined by the proportion of his contributions, and that if he contributes three-fourths of his income to partial dependents, such partial dependents would receive three-fourths of the total death benefit, or if he contributed all his earnings the partial dependents would receive the total death benefit, or the same amount the total dependents would receive. The third theory is that the death benefit is the same in all cases, whether there be total or partial dependents, but the method of distributing to partial dependents is determined by the percentage which each partial dependent would receive as compared to the employee's total contributions.

We have given this case much thought and careful consideration, and have come to the conclusion that the second theory above referred to is the correct one, and the one which was really intended by the legislature. We deem it wise at this point in our opinion to set out that part of the Workmen's Compensation Act which we deem directly applicable to the facts of this case, and necessary to a proper determination thereof, which is paragraphs (b) and (e) of Section 21 of the Act.

(b) "The employer shall also pay to the total dependents of the employee a single total death benefit, the amount of which shall be determined in the following manner to-wit: There shall first be determined as a basis for computation 66 2/3 per cent. of the employee's average weekly earnings during the year immediately preceding the injury as provided in section 22 and such amount shall then be multiplied by three hundred and the amount so determined shall be the amount of such death benefit. The death benefit provided for shall be payable in installments in the same manner that compensation is required to be paid under this act, but in no case less than at the rate of six dollars per week nor more than twenty dollars per week. There shall, however, be deducted from such death benefit any compensation which may have been paid to the employee during his lifetime for the injury resulting in his death. If there be a total dependent or total dependents as the case may be, no death benefit shall be payable to partial dependents, or any other persons except as provided in paragraph (a) of this section.

(c) "If there be partial dependents, and no total dependents, a part of the death benefit herein provided in the case of total dependents, determined by the proportion of his contributions to all partial dependents by the employee at the time of the injury, shall be paid by the employer to each of such dependents proportionately."

We are clearly of the opinion that the claimants here are only partial dependents. That fact is now conceded by counsel for claimants, and the question with which we are now concerned is the proper construction to be placed upon paragraph (c), which determines the amount that a partial dependent shall receive. By reference to this paragraph or sub-section, it will be noted that the language used therein is anything but clear and unambiguous. Either of the three constructions above contended for could be placed upon this section, but it is our duty to ascertain, if possible, just what the Legislature really meant and intended by the enactment of this provision. A reference to the Compensation Acts of other states is of little or no benefit to us because we have been unable to find an identical provision in the act of any other state.

The average weekly earnings of the deceased were $15.24. In order to arrive at the total death benefit as provided in paragraph (b) above set out, we would multiply two-thirds of the average weekly earnings by three hundred, which would amount to $3,048. Now to determine the amount which partial dependents would receive we would have to use the above total as a basis, and under our construction of paragraph (c), if deceased had contributed two-thirds of his income to his parents these parents as such partial dependents would be entitled to receive two-thirds of the total death benefit, but where, as in this case, the partial dependents receive all of the employee's wages, then such claimants would be entitled to receive $3,048, or the same amount that total dependents would receive, because the act provides that if there be partial dependents and no total dependents, the part of the death benefit which is to be paid such partial dependents proportionately, shall be determined by the proportion of his contributions to all partial dependents. Paragraph (c) when properly construed, we think, means that the part of the death benefit which partial dependents receive is determined by the proportion of the employee's wages which he contributes to such partial dependents, and not such amount as the total contributions bear to the total family income.

The point is also made by the appellant that as the injury and death of the employee was caused by his failure to obey a reasonable rule adopted by the employer for the safety of its employees, which rule prohibited the employees from riding bicycles upon the sidewalks, the death benefit should be reduced fifteen per cent under the provisions of Section 3 of the Workmen's Compensation Act, Laws of Missouri 1927, page 493.

In his written opinion the trial judge held that such rules adopted by an employer and referred to in Section 3, were rules where the employees are engaged in work on the premises of the employer, and where the safety devices referred to in the act are used and can be used, and did not refer to an accident which might occur on the streets of the City of St. Louis, and not immediately connected with the operation of the employer's business. We are inclined to the view that under the facts of this case no deduction should be allowed.

The judgment of the circuit court is accordingly affirmed.Haid, P.J., and Becker, J., concur.

Reporter's Note:- Writ of certiorari in the foregoing case was denied by the Supreme Court, May 15, 1930.