Denning v. Star Publishing Company

• Decision Date: 20 April 1932
• Docket Number: 14,534
• Citation: 180 N.E. 685,94 Ind.App. 300
• Parties: DENNING ET AL. v. STAR PUBLISHING COMPANY
• Court: Indiana Appellate Court

180 N.E. 685

94 Ind.App. 300

DENNING ET AL. v. STAR PUBLISHING COMPANY

No. 14,534

Court of Appeals of Indiana

April 20, 1932

From Industrial Board of Indiana.

Proceeding under the Workmen's Compensation Act by Marthella F Denning as an individual and also as trustee for Lawrence A Denning, Jr., to recover compensation for the death of Lawrence A. Denning, employee of the Star Publishing Company. From an order of the Industrial Board denying compensation to Marthella F. Denning as an individual and awarding compensation to Lawrence A. Denning, Jr., in an unsatisfactory amount, both claimants appealed.

Affirmed as to the first and reversed as to the second.

Thomas P. Gallagher, for appellants.

Burke G. Slaymaker, Clarence F. Merrell, Theodore L. Locke and James V. Donadio, for appellee.

BRIDWELL C. J., CURTIS, J., Neal, J., concurs in above.

OPINION

BRIDWELL, C. J.

Appellants filed their application for an award of compensation with the Industrial Board of Indiana, under the Workmen's Compensation Act of 1929 (Acts 1929, ch. 172, p. 536, § 9446 et seq. Burns Supp. 1929), alleging, among other things, that one Lawrence A. Denning died on September 24, 1929, as a proximate result of personal injuries received by him on said date by reason of an accident arising out of and in the course of his employment by appellee.

The application was submitted to the Industrial Board, and, after a hearing by a member of said board, an award was made, following which an application for review by the full board was filed, and such board, upon hearing the cause, made its finding and award denying compensation to appellant, Marthella F. Denning, and awarding compensation to Lawrence A. Denning at the rate of $ 4.95 per week for a period of 300 weeks. From this award, appellants appeal, assigning as error that the award of the full Industrial Board is contrary to law.

The facts as found by the full Industrial Board are as follows: "That one Lawrence A. Denning was in the employ of the defendant, Star Publishing Company, on the 24th day of September, 1929, at an average weekly wage in excess of $ 30.00; that on said date the said Lawrence A. Denning received an injury by an accident arising out of and in the course of his employment of which the defendant had knowledge; that the said Lawrence A. Denning died on the 24th day of September, 1929, as a result of the accidental injuries suffered by him on the same date; that on the 16th day of November, 1919, plaintiff herein, Marthella F. Denning, and Lawrence A. Denning, now deceased, were married; that on the 26th day of November, 1920, their son, Lawrence A. Denning, Jr., plaintiff herein, was born; that on the 9th day of September, 1927, a divorce was granted Marthella F. Denning in Superior Court, Vigo County, No. Two, under which decree Marthella F. Denning was given the custody of the minor son, Lawrence Denning, Jr., and Lawrence A. Denning, now deceased, was ordered to pay to the Clerk of Superior Court, Vigo County, No. Two, nine Dollars ($ 9.00) per week, same to be used for the maintenance and support of Lawrence A. Denning, Jr.; that said divorce decree and court order remained in full force and effect from the 9th day of September, 1927, until the time of the injury and death of Lawrence A. Denning on the 24th day of September, 1929."

Upon this finding, the board, as heretofore stated, entered its award denying to appellant Marthella F. Denning any compensation, and granting to Lawrence A. Denning compensation at the rate of $ 4.95 per week, for a period of 300 weeks, provided that he shall live during said period, and his dependency not terminate in any manner provided by the Indiana Workmen's Compensation Act. Compensation payments due, were, by said award, ordered paid to Marthella F. Denning, as trustee for the said Lawrence A. Denning, under appointment of the Superior Court of Vigo County, Indiana.

The facts in this case are not in controversy. It is stipulated and agreed that, on September 24, 1929, Lawrence A. Denning was in the employ of appellee at an average weekly wage in excess of $ 30; that on said day he received personal injuries by reason of an accident arising out of and in the course of his employment, which caused his death on that day. It is further disclosed by the evidence, without any conflict therein, that appellant, Marthella F. Denning, and the deceased employee, Lawrence A. Denning, were married on November 16, 1919; that their son, (Lawrence A. Denning, Jr.), was born November 26, 1920; that, on June 17, 1927, appellant Marthella F. Denning filed an action for divorce against her husband, now the deceased employee; that, on September 9, 1927, said cause was tried by the court, both parties thereto being present in person and by counsel, and, as a result of such trial, a decree of divorce was granted to said appellant, and by said decree she was awarded the care and custody of the infant son Lawrence A. Denning, Jr., then seven years of age, and it was further ordered that Lawrence A. Denning, father of said child, pay into court, for its support, the sum of $ 9 per week, and that he be given the privilege of seeing said child at reasonable times, and that he pay the costs of the action; that the affidavit of residence filed with appellant's complaint for divorce was subscribed and sworn to by her on June 6, 1927, 11 days prior to the filing of the complaint; that no appeal was taken from the judgment entered in the divorce proceeding, and the validity of such judgment was never questioned by appellant Marthella F. Denning during the lifetime of the deceased employee; that, from and after the date of the judgment, said appellant considered herself as divorced and never thereafter lived with the said Lawrence A. Denning nor did she in any way rely upon him for support or receive from him any maintenance or support; that the child of said marriage remained in the custody of its mother at all times after the granting of the divorce, and its father from time to time paid to the clerk of the court money for its support, the last payment being made on November 5, 1927; that thereafter the father paid to the mother direct about $ 100 for the support of the child and the balance of the support required was furnished by the mother; that the order for support was never changed or modified and was in force and effect when the father died. It is also stipulated and agreed that, at the time of filing of application for compensation, Marthella F. Denning was the duly appointed and acting trustee for her son, Lawrence A. Denning, Jr., under appointment of the Superior Court of Vigo County, Indiana.

Appellant Marthella F. Denning contends that the judgment of the Vigo Superior Court granting to her a divorce is void; that she is the widow of the deceased employee and, as such widow, entitled to compensation under § 38 of the Workmen's Compensation Act (Acts 1929, ch. 172, p. 536), providing that a wife shall be conclusively presumed to be wholly dependent for support upon her husband when living with him at the time of his death, or upon whom the laws of the state impose the obligation of her support at such time. She asserts that the Vigo Superior Court had no jurisdiction of the subject-matter in the divorce proceeding because of the fact that the residence affidavit required by statute was subscribed and sworn to by her 11 days before the complaint for divorce was filed, and appellant cites and relies upon the case of Klepfer v. Klepfer (1930), 173 N.E. 232, to sustain her contention.

In this case, we deem it unnecessary to decide as to whether the judgment in the divorce case is valid, void or voidable. This appellant invoked the jurisdiction of the Vigo Superior Court, obtained a decree of divorce, and thereafter, at all times until after the death of her husband, recognized the judgment as a valid one, accepting and enjoying all benefits flowing therefrom and neither receiving nor expecting, for a period of more than two years, any maintenance or support from the decedent. Appellant, having filed her complaint for divorce and prosecuted it to final judgment in her favor, by her acts affirmed the jurisdiction of the court to grant the divorce, and she is now estopped to deny such jurisdiction in order to secure an advantage to herself by way of an award for compensation. Garner v. Garner (1871), 38 Ind. 139; Bartle v. Walsh Construction Co. (1932), ante 171, 180 N.E. 294. See, also, Arthur v. Israel (1890), 15 Colo. 147, 25 P. 81, 10 L. R. A. 693, 22 Am. St. 381; Mohler v. Shank (1895), 93 Iowa 273, 61 N.W. 981, 34 L. R. A. 161, 51 Am. St. 274.

This appellant is barred from recovering compensation herein for another reason which we deem it proper to state. Her application for compensation was filed on May 28, 1931. At that time there was in full force and effect a statute enacted by the General Assembly of 1931, providing as follows: "That all judgments made and entered in divorce cases in which the complaint was not filed on the same day that the affidavit of residence of the plaintiff was made, shall not be invalid for that reason, and that such judgments are hereby legalized and made valid." Acts 1931 p. 446, ch. 112.

This appeal also presents for determination the question of the correctness of the award made to Lawrence A. Denning, infant son of the decedent. It is contended in his behalf that, if his mother be not entitled to compensation then, that he, as sole dependant of his deceased father, is entitled to an award equaling in amount 55 per cent of the average weekly wages of said deceased employee. Appellee contends that the widow, Marthella F. Denning, has no right to compensation and that the son, if entitled to compensation...