Collwell v. Bedford Stone & Constr. Co.

• Decision Date: 13 March 1920
• Docket Number: No. 10662.,10662.
• Court: Indiana Appellate Court
• Parties: COLLWELL v. BEDFORD STONE & CONSTRUCTION CO.

73 Ind.App. 344

126 N.E. 439

COLLWELL

v.BEDFORD STONE & CONSTRUCTION CO.

No. 10662.

Appellate Court of Indiana, Division No. 1.

March 13, 1920.

Appeal from Industrial Board.

Application by Ellen Collwell for compensation for the death of Green Collwell, deceased, opposed by the Bedford Stone & Construction Company. The full board entered an order that applicant take nothing, and she appeals. Affirmed.H. Clarence Austill, of Indianapolis, for appellant.

Howe S. Landers, of Indianapolis, for appellee.

BATMAN, J.

The record in this case discloses that appellant, on May 12, 1919, filed with the Industrial Board an application for the adjustment of her claim for compensation, alleging therein, among other things, that her husband, Green Collwell, died on April 12, 1919, as the proximate result of personal injuries received on said day by accident arising out of and in the course of his employment by appellee, leaving her as his sole dependent, and that she was wholly dependent upon him. After a hearing by a single member of the board and a review by the full board, the following finding was made:

“And the full board, having heard the argument of counsel, having reviewed the evidence, and being duly advised in the premises, finds that on the 12th day of April, 1919, one Green Collwell was in the employment of the defendant at an average weekly wage of $16.35; that on said date, while engaged in the discharge of the duties of his employment, the said Green Collwell received a personal injury by an accident arising out of and in the course of his employment, resulting in his instant death; that the defendant had actual knowledge of the injury to and the death of said Green Collwell at the time of the occurrence; that the plaintiff was the surviving widow of Green Collwell; that she and Green Collwell were married 28 years prior to his death; that they separated 3 years prior to his death, and during all of said time lived separate and apart, and they were not living together at the time of his injury and death; that during said period of time the said Green Collwell did not support the plaintiff, and did not contribute to her support, except that a short time prior to his death he gave her the sum of $3; that she was not relying upon him for her support at the time of his injury and death, and was not receiving contributions from him for that purpose.”

On the foregoing finding the full board entered an order that appellant take nothing by her application, and that she pay the cost of the proceeding. From this order appellant prosecutes this appeal on an assignment of error that the award of the full board is contrary to law.

The only question presented by appellant for our determination in this appeal relates to her right, as the widow of the decedent, to have compensation awarded her under the facts found. Appellant contends that such facts show that she was a dependent of said decedent, and therefore entitled to compensation, while appellee asserts the contrary. The section of the Workmen's Compensation Act relating to dependents, in force at the time of the injury and death of decedent, contained the following provisions pertinent to the question under consideration:

“Sec. 38. The following person shall be conclusively presumed to be wholly dependent upon such deceased employé:

(a) A wife upon a husband with whom she lives at the time of his death. *** In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the fact, as the fact may be at the time of the injury.” Acts 1915, p. 402.

It will be observed that by the provisions of this section a widow of a deceased employé had a right to compensation if she was living with such deceased employé at the time of his death, or, if not so living with him, that she was dependent upon him for support. In construing this section this court has held, in effect, that the mere legal obligation of a husband to support his wife, with whom he was not living at the time of his death, did not establish the dependency of such wife. In re Carroll (1917) 116 N. E. 844. If we measure appellant's rights, as widow of said decedent, by the provisions of this section, which were in force on April 12, 1919, the date of decedent's injury and death, it is clear, in the light of the decision cited, that appellant has no right to receive compensation.

But appellant contends that she has a right to avail herself of the provisions of said section 38, as amended by the act of 1919, which reads in part as follows:

“Sec. 38: The fo]lowing persons shall be conclusively presumed to be wholly dependent for support upon a deceased employé:

(a) A wife upon a 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. *** In all other cases, the question of total dependency shall be determined in accordance with the fact, as the fact may be at the time of the death,...