Brown v. Templeton Coal Company

• Decision Date: 24 January 1923
• Docket Number: 11,499
• Citation: 137 N.E. 724,79 Ind.App. 244
• Parties: BROWN ET AL. v. TEMPLETON COAL COMPANY
• Court: Indiana Appellate Court

137 N.E. 724

79 Ind.App. 244

BROWN ET AL. v. TEMPLETON COAL COMPANY

No. 11,499

Court of Appeals of Indiana

January 24, 1923

From the Industrial Board of Indiana.

Proceedings for compensation under the Workmen's Compensation Act by Margaret Brown and another against the Templeton Coal Company. From an order denying an award of compensation, the applicants appeal.

Affirmed.

Charles D. Hunt, for appellant.

Will H Hays, Hinkle C. Hays, Alonzo C. Owens, W. Paul Stratton, John S. Taylor and George W. Buff, for appellee.

OPINION

REMY, P. J.

Appellants filed with the Industrial Board an application for the adjustment of their claim for compensation, alleging, among other things, that on a certain day, one William Brown, the husband of appellant Margaret Brown, and the father of appellant William Brown, Jr., lost his life as the proximate result of personal injuries sustained by reason of an accident arising out of and in the course of his employment by appellee. The Board found that appellants were not dependents of the deceased at the time of his death, and ordered that they take nothing.

The facts shown by the evidence, which are material in determining the question presented, are as follows: The deceased married appellant Margaret Brown, January 2, 1894 in Scotland, in which country they lived together as husband and wife until December 25, 1904, at which time the deceased came to America, and located in, and became a resident of, the State of Indiana, where he resided until his death on November 16, 1920. From the time of their marriage until deceased came to America, the deceased and appellant Margaret Brown lived together as husband and wife; and as the fruits of the marriage four children were born, the youngest of which is appellant William Brown, Jr., who at the time of the death of his father was eighteen years of age. Appellant Margaret Brown and the children remained in Scotland, where they continued to live until the time of decedent's death, and where they now reside. From the time he arrived in America, and until March, 1918, deceased made semi-monthly remittances of money to his family; after which date, and until his death, he made no remittances whatever. After leaving Scotland, decedent from time to time importuned his wife to come to his home which he had established in Indiana, and live with him as his wife, which she refused to do, but elected to live apart from him, and near her relatives in Scotland.

In their brief, appellants concede that, under the evidence, the Industrial Board rightly found against appellant William Brown, Jr.

The one question for our determination is whether or not, under the facts as shown by the evidence, appellant Margaret Brown hereinafter referred to as the appellant, was, at the time of decedent's death, a dependent of decedent, within the meaning of § 37 of the Workmen's Compensation Act (Acts 1919 p. 158, § 8020u1 Burns' Supp. 1921), which provides that, when death results to an employe within three hundred weeks from the time of his injury, certain compensation shall be paid to his "dependents." It is not claimed by appellant that she was actually dependent upon the deceased employe at the time of his death. On the contrary, it is conceded that he had contributed nothing towards her support for more than two years. The contention is that she is entitled to compensation as one "presumed" to be a dependent within the meaning of...