Cole v. Sheehan Const. Co.

Decision Date02 March 1944
Docket Number27967.
Citation53 N.E.2d 172,222 Ind. 274
PartiesCOLE v. SHEEHAN CONST. CO.
CourtIndiana Supreme Court

Henry J. Richardson, Jr., of Indianapolis, for appellant.

William E. Hart, George C. Forrey, III, and White, Wright &amp Boleman, all of Indianapolis, for appellee.

SHAKE Judge.

The appellant filed a Form 10 application with the Industrial Board of Indiana, claiming workman's compensation from the appellee. The hearing member denied compensation and on review by the full Board that body reached the same result one member dissenting. The Appellate Court reversed the award and remanded the cause for further proceedings. We granted the appellee's petition to transfer and heard oral argument.

The application for compensation alleged: (1) That Willie Cole met his death as the proximate result of personal injuries received by him by reason of an accident arising out of and in the course of his employment by the appellee and that his average earnings at the time of injury were in excess of $30 per week; and (2) that the appellant was the surviving wife of said decedent and wholly dependent upon him for support.

The allegations designated (1) above were stipulated before the Board and found by it to be true; as to (2) the finding of the full Board recites:

'The full Industrial Board, by a majority of its members, now further finds that the plaintiff herein, Anna Mae King Cole, alleged common law wife of the decedent, Willie Cole, did not live with said decedent at the time of his death and was not wholly or partially dependent on said plaintiff's decedent, Willie Cole, for her maintenance and support at the time of his death.'

Section 38 of the Workmen's Compensation Act of 1929, § 40-1403, Burns' 1940 Replacement, § 16414, Baldwin's 1934, provides that a wife shall be conclusively presumed to be wholly dependent for support upon her deceased husband employee with whom she was living at the time of his death, or upon whom the laws of the state imposed the obligation of her support at such time; and that in all other cases, questions of total dependency shall be determined in accordance with the fact, as the fact was at the time of death.

In Jelicic v. Vermillion Coal Co., 1924, 81 Ind.App. 675, 678, 144 N.E. 38, 39, Batman, J., speaking for the Appellate Court said:

'Under the law as it has existed since 1919, three classes of widows of deceased employees are entitled to receive compensation, as dependents, where facts are found showing liability, viz.: (1) Those living with their husbands at the time of their deaths; (2) those not living with their husbands at the time of their deaths, but dependent upon them for support; (3) those not living with their husbands at the time of their deaths, and not dependent upon them for support, but who nevertheless were entitled to support from their husbands at the time of their deaths by virtue of the laws of the state * * * . If a widow falls within either said first or third class, she is conclusively presumed to be wholly dependent upon her deceased husband for support; but if she falls within said second class, there is no such presumption, and hence the question of dependency must be determined in accordance with the fact, as the fact may be at the time of such death, * * *.

'Whether a wife is living with her husband at the time of his death involves a conclusion of fact, but whether the laws of the state impose an obligation upon him to support her at such time involves a conclusion of law, as its determination requires an application of abstract principles of law to the facts, as they are found to exist. * * *'

It was further held in Welch v. Welch Aircraft Industries, Inc., 1941, 108 Ind.App. 545, 550, 29 N.E.2d 323, 326, transfer denied by this court, that 'it is incumbent upon the one seeking the benefit of the presumption (of dependency) to show by competent evidence that the conditions of the statute which give rise to the presumption existed at the time of the decedent's death.' And this court concluded in Russell v. Johnson, 1943, 220 Ind. 649, 46 N.E.2d 219, that the adulterous relationship existing between a man and woman, living together in the relation of husband and wife, did not necessarily preclude her from recovering compensation benefits as his actual dependent.

Applying the statute as it has been interpreted, we conclude that it was necessary for the appellant to prove either: (a) That she was the wife of the decedent and that she was living with him at the time of his death; (b) that she was the wife of the decedent at the time of his death and, though not living with him at such time, she was, nevertheless, entitled to support from him by virtue of the laws of this state, or (c) that she was actually dependent upon the decedent at the time of his death, without regard to whether she was his wife or was living with him at such time. If the appellant and the decedent were married and if, under the facts, the law of the state imposed upon him the obligation of her support, she was entitled to compensation though they were not living together and she was not actually dependent upon him at the time of his death. As already pointed...

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