Turnbull v. Cyr, 12493.

• Citation: 188 F.2d 455
• Decision Date: 20 March 1951
• Docket Number: No. 12493.,12493.
• Parties: TURNBULL et al. v. CYR, Deputy, Bureau of Employees' Compensation, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

188 F.2d 455 (1951)

TURNBULL et al. v. CYR, Deputy, Bureau of Employees' Compensation, et al.

No. 12493.

United States Court of Appeals Ninth Circuit.

March 20, 1951.

Leonard Hanna & Brophy, Edmund D. Leonard and Ivan A. Schwab, all of San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., Edgar R. Bonsall and Macklin Fleming, all of San Francisco, Cal. (Ward E. Boote, Chief Counsel, Herbert P. Miller, Asst. Chief Counsel, Bu. of Employees' Compensation, Fed. Security Agency, Washington, D. C., of counsel), for appellee.

Before STEPHENS and ORR, Circuit Judges, and FEE, District Judge.

JAMES ALGER FEE, District Judge.

Kenneth R. Ross was employed in the year 1943 by J. Gordon Turnbull and Sverndrup and Parcel, contractors on the Canol Project, a defense base project in Yukon Territory in Canada. Ross died on March 30, 1948, as a result of tuberculosis found to have been contracted while engaged in this work. Lois G. M. Ross, as widow and on behalf of John Gary Ross, a son born September 2, 1947, filed an application for death benefits under the Longshoremen's and Harborworkers' Compensation Act, as extended by Defense Bases Act. A hearing was had before Cyr, as Deputy Commissioner. On July 8, 1948, there was filed a compensation order awarding death benefits to Lois G. M. Ross and to John Gary Ross. A complaint for injunction against enforcement of the order was filed. The District Court filed an order dismissing the complaint, and this appeal followed.

Three grounds of error are assigned. First, it is said the evidence is insufficient to support the finding that Lois G. M. Ross is the widow of the deceased employee. The evidence showed positively that she and deceased lived together as man and wife in Colorado, a state which recognizes common law marriages, from June, 1947, until the death of Ross in March, 1948. The child was born in Colorado on September 2, 1947, while this relationship was in existence. Lois G. M. Ross was known and recognized as the wife of Ross during all the time they lived in Colorado. Based upon this evidence, the Deputy Commissioner found that there was a common law marriage and that she was the surviving wife and the widow of Ross. These were questions of fact, and both the District Judge and this Court are bound by the finding of the administrative officer. Second, it is contended that Lois G. M. Ross was not included in the class of persons entitled to the benefits of the Act. Third, the same contention is made as to the son of the deceased employee. These are both questions of law. The Defense Bases Act provides that the scheme of compensation set up in the Longshoremen's and Harborworkers' Act shall be applicable to employees in certain defined areas known as "Defense Bases." The language is as follows:

"Title 42 U.S.C.A. § 1651 * * * "(a) Except as herein modified, the provisions of sections 901-921 and 922-950 of Title 33, as amended, shall apply in respect to the injury or death of any employee engaged in any employment —" of the type defined therein.

The Longshoremen's and Harborworkers' Act, in certain of the sections above referred to, defines the "widow" as "only the decedent's wife living with or dependent for support upon him at the time of his death * * *."¹ It is clear, since the conditions are stated in the alternative, that fulfillment of either one of the conditions qualified Lois G. M. Ross as widow. The Deputy Commissioner found, as above noted, that Lois G. M. Ross was the wife of the deceased employee, and further that she was living with Ross at the time of his death. Upon these facts the words of the basic statute would literally require that she be awarded compensation, for it is provided² that, "If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following: * * * (b) If there be a surviving wife or dependent husband and no child of the deceased, to such surviving wife or dependent husband 35 per...