Albee's Case

• Decision Date: 22 April 1929
• Citation: 145 A. 742
• Court: Maine Supreme Court
• Parties: ALBEE'S CASE.

145 A. 742

ALBEE'S CASE.

Supreme Judicial Court of Maine.

April 22, 1929.

Appeal from Supreme Judicial Court, Knox County, in Equity.

Proceeding under the Workmen's Compensation Act by the widow of John Henry Albee, deceased, opposed by the insurance carrier. From a decree denying compensation claimant appeals. Appeal dismissed, and decree below affirmed.

Argued before WILSON, C. J., and DUNN, STURGIS, BARNES, and FARRINGTON, JJ.

Tascus Atwood, of Auburn, for appellant.

Hinckley & Hinckley, of Portland, for appellee.

DUNN, J. On November 15, 1927, John Henry Albee, the workman of that name, sustained industrial injury at Thomaston. He was killed instantly. His widow claimed compensation. The insurance carrier filed an opposing answer. Upon hearing, the chairman of the Industrial Accident Commission denied compensation, and dismissed the claimant's petition. Such action was on the ground that, conceding all other points proved, claimant was not the statutory dependent of her husband at the time of his injury; her living apart from him having been without justifiable cause, and he not having deserted her. From the compensatory decree, this appeal is prosecuted. The appeal presents for decision whether, as a matter of law, the claimant was dependent on her husband for support.

In reference to the situation the Workmen's Compensation Act (Laws 1919, e. 238) provides:

"A wife [shall be conclusively presumed to be wholly dependent for support] upon a husband * * * from whom she was living apart for a justifiable cause, or because he had deserted her." Section 1, subd. 8(a).

Conclusive presumptions are not really pre sumptions at all. They are merely rules of law declaring a particular fact to be true under particular circumstances. The Legislature establishes that in the case specified the nonexistence of the fact presumed is immaterial. Rush v. London, etc., Co., 139 Minn. 409, 166 N. W. 772.

There was testimony justifying the trier to find these material facts:

Beginning in 1896, husband and wife lived together over a period of 24 years, both at fault as to "words" with the condition mutually accepted, perhaps, as incidental to marriage.

In 1920 they were boarding at the wife's sister's house in Lewlston. The husband had employment elsewhere as a laborer; the wife was employed in a shoe factory.

The boarding mistress did not like the man's habit of getting up early mornings and talking in his naturally loud voice. She dismissed him. He went down town and hired a room; of this his wife learned. When he came back that same day for his bank book, his wife gave, it to him from her custody, voluntarily and without hesitation or question. He took the book to and left it with his stepdaughter in Auburn. Later in the week he returned to the boarding house and removed his personal effects. The wife, though she saw what her husband was doing, did not seek him or speak to him, nor did he go to or speak to her. That was his last time there.

On leaving the boarding house or afterwards Albee did not ask his wife to live with him. He did not from that time on contribute to her support. He made no effort to see her. On one day, five or six years afterward, husband and wife met on the street when he bowed and may have spoken to her; she was indifferent to his presence. Following this they unexpectedly found themselves in a public dining room on the fair grounds, but neither sought out the other.

Seven years passed. Meanwhile the woman, who throughout had been self-sustaining, and was informed as to her husband's whereabouts, had removed to the home of the daughter who had, or had had, the bank book.

The wife libeled for divorce. The cause alleged is not in the record. Before the case was called the libelee had died.

Claimant testified she might have been ready and willing, before the libeling, to live with her husband, had he requested her to do so, and made provision therefor, and said he was sorry for the names he had called her and indicated that he would do better than he had done, but, notwithstanding this testimony, she apparently made up her mind, recites the commissioner in the opinion he filed, that she no longer needed her husband and chose not to live with him further.

In the absence of fraud, findings of fact in a compensation proceeding, having competent evidence to...