#### MOSSMAN et al. v. ST. JOSEPH LEAD CO. et al.

No. 43630.

Supreme Court of Missouri. Division No. 2.

Feb. 8, 1954.

Rehearing Denied March 8, 1954.

*336Smith, Harris ■ *&*Hanke, Harold - C. Hanke, St. Louis, for appellants. ”

• -W.' Oliver . Raschj John S. Marsalek, Moser, Marsalek,- Carpenter, Oeary & Carter, St. Louisj for respondent St.- Joseph Lead Co.

ELLISON, Judge.

This is an appeal from a final award of the Department of Labor and Industrial Relations, Division of Workmen’s Con> pensation, Section 286.110 RSMo 1949, V. A.M.S., denying the.appellants compensation under Sec. 287.490. They appealed to the circuit court with the same result. Again appealing, the St. -Louis Court of Appeals transferred the- -case here. The áppellant-claimants are Virginia Mossman and her1'infant son’Terry’Lyn Mossman, about one year’-'old at the-time of the death of his maternal grandfather Emil Gramm, on July 25, 1950, in an accident occurring in the'course of’’h-is employment" by the respondent St. Joseph Lead Company. His .daughter, Mrs) ’Mossman and her infant spn brought this proceeding against the respondent ,LeaS Company under the Compensation Act on -the theory that they were partial- ■ dependents of her. father. The above tribunals held they were not. '

She' was and still'is married to the child’s father, Floyd Mossman, and they lived in a separate home' in Farmington for which, up to September, 1950, they paid $10 per week rent. He was 22 years old when her father died- and 'was-ablebodied,, healthy, and independently employed. His main occupation was as a painter, but he also worked as a gas station attendant, truck driver’, factory worker and trapper. On the other hand, Mrs. Mossmari’s father, Éinil Grainm, lived at Desloge eight miles away where he worked for the respondent Lead Company, and had boarded there with a Maness family for seven years in a house he owned or on which, at least, he was making payments.

Before going further into the facts, .the reason for the. transfer of this case by the St. Louis Court of Appeals to-.this court should be explained. Section 287.220, subd. 1(1) RSMo 1949, V.A.M.S’. provides that every employer “shall pay into the *second injury fund*hereby created for every fatal injury by accident-, on account of which death benefits would be payable under this chapter, but sustained by an employee having no dependents as defined by section 287.240; a lump sum of five hundred- dollars.” Sec. 287.240(4) defines the word “dependent” as meaning “a. 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 foregoing $500 •payment was duly made,

The respondent employer St. Joseph Lead Company filed application, to make the State Treasurer, custodian of said second injury fund pursuant to Sec. 287.220, subd. 1(1), a party to the suit and he entered his .appearance accordingly.. The Lead Company contended that since the State Treasurer is a state officer under Art. IV, Sec. 15-,. Const.1945, V.A.M.S., this court and not -the St. Louis Court of Appeals has appellate jurisdiction of the appeal under- Art. V, Sec. 3, Const.1945. On,that basis the St, Louis -Court of Appeals ordered the cause transferred here. Mo.App., 254 S.W.2d 241.

. Reverting 3⁄80 the question whether the appellants Mrs. Mossman. and her infant son Terry Lyn were partial dependents. of her deceased father Emil Gramm when and ■before he died on July 25, 1950. 'there was some evidence that she and her husband were partly self-suppprting though she-.had-received numerous benefactions ■from her father before his death. She had then been married to her husband nearly tw.o years — since September 4, 1949. Their son Terry Lyn was born on July 10, 1949, slightly over a year before his grandfather Gramm’s death on July 25, -1950,, His father, Floyd Mossman, then was 22 years old. His mother, was nearly 20.

They lived in three furnished rooms at Farmington- for which they paid $10 per week. -During the winter of 1949-50 they •were four weehs behind in the rent. In the middle of January, 1950, Mrs. Mossman be*337gan to work at the Rice-Stix shirt factory and continued until shortly before Christmas. Appellants’ brief states her total net earnings were about $650. During the same year her husband, Floyd Mossman, worked as a painter for his own father at $1.50 per hour, but was mostly self employed. His records showed he madé $1021 from July 25, 1949 to July 25, 1950, the year before the death- of his father-in-law Gramm. But he ■ did not work during the winter months, November, December, January and February, when he was not painting or trapping.

He prepared a table showing his earnings during the year ending July '25, 1950, after which he could not .claim contributions from his deceased father-in-lawls estate as earnings. This table showed, as near as we can make out, the following:

> July, 1949 ... $ 60.00

> August, 1949 .‘ 218.00

> September, 1949 ;.'.. ' 251:50

> October, 1949 .■ 83.50

> November, 1949,'painting at hospital ..1.. 210.00

> December,, 1949, trapping furs... 214.00

> May, 1950, painting at'hospital.. '' 210.00,

> June, 1950 . 202.00

> July, 1950, before July 251... 200.00

> Total earnings .. $16.49.00

> Less expenses:

> for traps. $22.50

> for gasoline ..... i.. 2.50

> for brushes . 35.00

> for paint. 20.00 80.00

> Net earnings . $1569.00

In addition Mrs. Mossman earned .$650 -in^ 1950, which,. with her husband’s- net earnings of $1569 totaled-$2219. • The appellant Mrs. Mossman testified that during the year preceding the death of her father Mr. Gramm1 he gave'hér- groceries or money to -buy them,, of the .value of $50 per month,. but .the record does not appear to support that contention as to the. amount of his contributions. Appellants’ counsel contend that during the year preceding his death Mr. Gramm’s income was $3281.99, plus money derived in trafficking in scrap iron, and $20 per month rent from his sister, Mrs. Maness and-her-family. The appellant Mrs. Mossman also offered to prove she obtained appropriations for her maintenance and support from her own.minor child’s support in the total sum of "$1850.

She- contends Mr. Gramm, whose expenses were less than her’s, could well afford to contribute, to the support of herself and. her -child, which, she. says he Hid in the sum of $882.84. On that point she cites Whittington v. Gamble Const. Co., Mo.App., 86 S.W.2d 331, 333(2), which says that.while the decedent there was .under no legal obligation to support his own daughter, yet if she was in fact actually dependent in whole or in part she came within The purview of the Workmen’s Compensation Act. -' - .

In this case 'it is true that the decedent’s income here exceeded $3281.99. But the. income of his daughter during the year in question was $650 and her able bodi,ed.' husband’s- was- ,$1569.00, totaling $2219.00 in addition to which her father was voluntarily contributing to. their, support. The final award of the Commission i'n this -case- denied additional compensation, and the circuit court affirmed that decision. The fact that her father' may have '.'made gifts of money and groceries to- her did not,' and does not necessarily require á finding that the claimants were actually dependent. Scott v. Wheelock Bros., Inc., 357 Mo. 480, 487(3), 209 S.W.2d 149, 153(5); Kemmerling v. Karl Koch Erecting Co., 338 Mo. 252, 255-6(2), 89 S.W.2d 674, 675; Ashwell v. U. S. Seed Co., Mo.App., 167 S.W.2d 950, 952(1, 2, 3).

In view of the testimony and the conclusions reached by both' the Commission and the circuit court, we think the judgment should be affirmed.

All, concur.