Colgate & Co. v. Smith

Decision Date21 April 1926
Docket NumberNo. 12558.,12558.
Citation151 N.E. 434,84 Ind.App. 473
PartiesCOLGATE & CO. v. SMITH.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Emma Smith for the death of Reuben Smith, her husband, opposed by Colgate & Co., employer. From an order of the Industrial Board granting an award, the employer appeals. Affirmed.Wilmer T. Fox, of Jeffersonville, for appellant.

L. A. Douglass, of Jeffersonville, for appellee.

ENLOE, P. J.

Reuben Smith, an employee of the appellant, died on the 22d day of April, 1925, as the result of injuries received by him on April 4, 1925, which injuries were accidentally received and arose out of and in the course of his employment with appellant. He left surviving him his wife, the appellee herein, who filed her application for an award of compensation as the dependent widow of said Reuben Smith. The matter was heard first by a single member of the Industrial Board, and later, on review, by the full board, and resulted in an award of compensation to the appellee as the widow and sole dependent of said employee; from which award this appeal is prosecuted.

The specific finding of the Industrial Board which is challenged on this appeal is the finding as to dependency. By the provisions of section 38 of our Compensation Act, as amended by Laws 1919, c. 57, p. 165, certain named and designated persons are, as a matter of law, conclusively presumed to be dependent, and among those who are so conclusively presumed to be dependent are (paragraph [a] of said section) “a wife upon her husband with whom she is living at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time.”

[1][2] In determining the sufficiency of the evidence to sustain a finding of fact, this court, on appeal, will look only to the evidence which is most favorable to support such finding. Such finding stands on the same footing as a verdict of a jury or a finding by a trial court. In re Carrol, 116 N. E. 844, 65 Ind App. 146;Indian Creek, etc., Co. v. Calvert, 119 N. E. 519, 120 N. E. 709, 68 Ind. App. 474.

[3] The first question, therefore, which we have to determine is: Is there any evidence in this record sufficient to sustain a finding that at the time of the death of said Reuben Smith he and the appellee were living together? This was a question of fact for the Industrial Board. Muncie, etc., Co. v. Coffee, 117 N. E. 524, 66 Ind. App. 405;Northwestern Iron Co. v. Commission, 142 N. W. 271,154 Wis. 97, L. R. A. 1916A, 366 Ann. Cas. 1915D, 877; Travelers' Insurance Co. v. Hallauer, 111 N. W. 527, 131 Wis. 371.

[4] Clause (a) of said section 38, as originally enacted (Acts 1915, c. 106, p. 392), was as follows: “A wife upon a husband with whom she lives at the time of his death.” It has been many times held that our Compensation Act should be liberally construed to the end that its humane purposes may be accomplished. In re Kelley, 116 N. E. 306, 64 Ind. App. 594;In re Betts, 118 N. E. 551, 66 Ind. App. 484;McDowell v. Duer, 133 N. E. 839, 78 Ind. App. 440. Prior to the adoption of our Workmen's Compensation Act the Wisconsin act, which as to the clause now under consideration was the same as our law, was before the Supreme Court of that state for consideration and construction in the case of Northwestern Iron Co. v. Industrial Commission, supra, and in passing upon the matter the court said:

“Proof of total dependency is dispensed with under the statute where the husband and wife are ‘living together’ at the time of the death of the injured employé. It seems, therefore, quite obvious that the Legislature intended by the use of the words to include all cases where there is no legal or actual severance of the marital relation, though there may be physical separation of the parties by time and distance. The ‘living together’ contemplated by the statute, we think, was intended to cover cases where no break in the marriage relation existed, and therefore physical dwelling together is not necessary, in order to bring the parties within the words ‘living together.’ There must be a legal separation or an actual separation in the nature of an estrangement, else there is a ‘living together’ within the meaning of the statute. This seems to be the reasonable and practical construction of the law, and the one which we think the Legislature intended.”

[5][6] In 1919 clause (a) of said section 38 was amended by adding thereto the additional...

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1 cases
  • Peterson v. John Morrell & Co., 7949
    • United States
    • South Dakota Supreme Court
    • January 5, 1937
    ...to her dependency. Northwestern Iran Co. v. Industrial Commission, 154 Wis. 97, LRA 1916A, 366, Ann. Cas. 1915B, 877; Colgate & Co. v. Smith, 84 Ind. App. 473, 151 N.E. 434; Harrison v. Cargill Commission CO., 126 Neb. 185, 252 N.W. 899. We now have no occasion to consider whether this view......

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