Rowe v. Ford Motor Co. ( 1938 )

Leon Seivers, unmarried, 18 years of age, died April 2, 1936, as the result of an accident which arose out of and in the course of his employment by defendant. His mother, Jennie Seivers Rowe, and sister, Bernice Seivers, 11 years old, claimed to have been dependent on deceased and entitled to a compensation under 2 Comp. Laws 1929, §§ 8421, 8422 (Stat. Ann. §§ 17.155, 17.156).

Jennie Seivers Rowe, the mother of deceased, Bernice and a son, Eugene, married Steven Rowe in 1932, about six years after the death of James Seivers, the father of her three children. The parties were living together as one household at the time of the death of deceased. The testimony indicated Mr. Rowe contributed $9 a week to the support of the household, Eugene $10 a week for board, and Leon $10 a week for board and an additional $12 a week, $10 of which was to support the mother and sister, the remaining $2 being for clothes for the mother.

The department of labor and industry found the above items constituted the total receipts of the family, being in all $41 a week, and that the weekly expenses for the family of five was $39.37.

The record discloses that $7 of the extra $10 given to the mother and sister of deceased by him for their mutual support was necessary for and did partially take care of the sister. The award of the department of labor and industry provided compensation at the rate of $10.54 a week for a period of 300 weeks, from April 2, 1936, or until the further order of the department, should be paid to Jennie Seivers Rowe "for thebenefit of herself and her minor child, Bernice Seivers, shareand share alike."

At the time of the accident, deceased was earning $6 a day. His total earnings for one year prior to his death were $666.05. The department found deceased contributed $390 beyond the money for his board and lodging to the family budget during the year preceding his death. Relying upon Kostamo v. H.G.Christman Co., 214 Mich. 652, the department determined that the above award be entered, it being its conclusion the mother and daughter were partially dependent upon deceased.

Defendant appeals, claiming the department erred in holding plaintiffs were dependent and the deficit in the family budget applied solely to the mother and sister of deceased. Defendant contends the proof showed Mr. Rowe earned $30 a week and that amount should have been considered in establishing the family budget rather than the $9 which the department used, and that on the basis of the husband's earnings there would be no dependency shown of plaintiffs on Leon for there would be $30 from Mr. Rowe, $10 from Eugene, $10 from Leon, $50 in all, as income over and above the $12 which Leon gave his mother and which it asserts should be considered as a gift not necessary in the support and maintenance of the family.

The issue herein depends upon whether the family income exceeded its expenses.

Plaintiffs rely upon Miller v. Riverside Storage CartageCo., 189 Mich. 360, where it is said:

"The test of dependency is not whether the family could support life without the contributions of the deceased, but whether they depended upon them as part of that income or means of living."

That is, the test of dependency is whether the parties are dependent. Plaintiffs contend this case is authority for the position the $9 a week paid by Rowe, and not the $30 which he earned, was the amount to be taken into consideration as showing that actually they were dependent upon the extra $12 which Leon contributed.

In Moll v. City Bakery, 199 Mich. 670, it was held the parents of a deceased employee were not dependent upon him so as to be entitled to compensation for his death where, if the amount the son's board cost the father was deducted from the family expenses, the father's income was more than sufficient to meet expenses. And in Neubauer v. Levy, 252 Mich. 83, it was said:

"Some courts have said that parents may be partly dependent for support on a child, although, out of the family exchequer, they pay reasonable amounts compared with their income for life insurance, on the purchase price of a home, for its repair, or other upkeep; and have suggested that modest savings may be made against a time of adversity and as a matter of family protection without departing from the realm of support. * * * But it was not the legislative intent that parents should be permitted to swell their investment account at the expense of an employer of their son. Where parents are able to save all the money contributed by the child after payment of his cost, they are not dependent on him for support."

Estrin v. Workmen's Circle Colony, 249 Mich. 186, is to be distinguished from the Moll and Neubauer Cases and does not lay down a doctrine contrary thereto. It was there found the father contributed about $7 a week to the family support, while his minor son contributed $25 a week. It was not shown what the father's earnings were but rather it was testified that he was in poor health and did not work steadily.

Where the contribution, or claimed contribution, of a deceased who does not have the primary obligation, moral or legal, to support another is out of all proportion to that of the one who does have such moral and legal obligation and prefers to lie back or so claims, pocketing or otherwise spending his money and shirking his legal and moral obligation of supporting his family, it cannot be said the legislature meant to lend its aid to his dependents by penalizing the employer of deceased.

In this case, the husband contributed $9 a week out of his $30 weekly wages for the support of the family, keeping out $21, while an 18-year-old stepson is supposed to have contributed $22 towards the family expenses. The decedent's mother was not dependent upon him because her husband's income was more than enough to take care of their pro rata share of the family expenses of $39.37 a week. Her uncontradicted testimony is that it took all of the contributions for board of Eugene and Leon to keep them. The fact the husband paid off about $300 in bills over a four-year period from 1932 to 1936 does not relieve him of his duty to support his wife. It is claimed he sent $15 a month to his mother in Newfoundland. He worked for defendant from January 11, 1934, to April 2, 1936, five and sometimes six days a week, with the exception of 18 weeks' lay-off over the whole period of employment. He had $70 in the bank and $270 in an investment account with defendant on April 2, 1936. Under such circumstances, dependency upon the deceased was not established. The husband may not fail to support his wife, pay indebtedness, contribute to the support of his mother, establish an investment account, and build up a savings bank deposit, at defendant's expense.

With respect to Bernice, there was no legal obligation on the part of Mr. Rowe to support her. She was not his daughter. There is nothing in the record indicating he adopted her. The rule which precludes the mother from being a dependent upon her son does not affect Bernice. The department of labor and industry found she was partially dependent on Leon for support, concluding she was supported to a greater or less degree by someone else. The mother testified it took $7 of the extra $12 contributed by Leon "at least" to clothe, feed, school and care for Bernice. There is no finding by the department this amount was actually used for the support of the sister of deceased for the year prior to the death of deceased, nor is it possible for, although $7 of the $12 was used, Leon only contributed $12 for 20 weeks. He sent the $25 a month home for the six months' period of April to October, 1935, when he resided away from home.

The only issue involved is whether the girl, Bernice, was dependent upon Leon as of the date of the accident. The department determined she was, but, since there was no separate finding as to the amount of deceased's contribution to each of the alleged dependents, we think the case should be reversed and remanded to the department for the reason that it disposed of the case upon an untenable legal basis and that it should be disposed of in accordance with this opinion. Nevels v.Walbridge Aldinger Co., 278 Mich. 214. The award to Jennie Seivers Rowe should be set aside, the award vacated, and the cause remanded for a separate determination of the amount of deceased's contribution to Bernice who was found to be a dependent.

WIEST, C.J., and SHARPE and NORTH, JJ., concurred with POTTER, J.